The ECJ recently decided that a public statement by an employer that it will not recruit employees of a certain ethnic or racial origin is likely to dissuade certain candidates from applying. Is this enough to constitute direct discrimination? Naomi Flynn submits her report.
Who: Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV
Where: The European Court of Justice (ECJ)
When: 10th July 2008
Law stated as at: 31 July 2008
"Words can hurt. But can words alone amount to discrimination?" This was the question posed for the ECJ to consider in a recent discrimination case, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV. In this case the ECJ looked at whether a discriminatory public statement made by a company which had no effect on any particular individual could give rise to a successful discrimination claim.
The case serves as a warning to all UK employers that discriminatory requirements in job vacancy ads or in comments by staff of the employer may give rise to a discrimination claim, even if the comments are not acted upon.
In 2003, as a result of European legislation, the UK government introduced the Race Relations Act 1976 (Amendment) Regulations 2003. The act expressly prohibits "direct discrimination" on the grounds of an individual's race. This occurs where a person treats another person less favourably than he would treat others on the grounds of his or her race.
It has previously been established case law (Cardiff Women's Aid v Hartup 1984) that an individual cannot bring a claim of direct discrimination based on a job advert. The only way a job advert could be used in a discrimination claim would be as evidence of discrimination if the applicant failed to get the job. For example if an advertising agency advertised a position for an Account Executive asking for "men only", a potential female candidate could not claim she had been directly discriminated against on the grounds of her sex unless she applied for the role of Account Executive and failed to get it. If this was the case she could cite the advert as evidence that the reason she didn't get the job was because of her sex and state that the agency had therefore discriminated against her as a woman.
The following case has challenged this position in Europe and could be a cause of concern for employers in the UK.
NV Firma Feryn ("Feryn") is a firm specialised in the sale and installation of doors. In early 2005, Feryn was seeking to recruit fitters to install doors at its customers' houses, and placed a large 'vacancies' sign on its premises alongside the main road between Brussels and Antwerp.
In April 2005, a Belgian newspaper published an interview with one of the firm's directors, under the heading 'Customers do not want Moroccans'. Mr Feryn was reported to have said that his firm would not recruit persons of Moroccan origin, stating that "we aren't looking for Moroccans, our customers don't want them. They have to install doors in private homes, and those customers don't want them coming into their homes."
The claimant in this case, Centrum voor Gelijkheid van Kansen en voor Racismebestrijding (Centre for equal opportunities and opposition to racism; 'the CGKR') is a body for the promotion of equal treatment. On 31 March 2006, the CGKR brought proceedings against Feryn, claiming that Feryn had infringed the law against race discrimination.
In their defence, Feryn claimed that they had not acted on their discriminatory statement because they had not actually turned down any job applications on grounds of the applicant's ethnic origins.
The issue put to the ECJ was whether the statement itself, which had not been followed up by Feryn, could give rise to a discrimination claim.
The ECJ held that the statement made by Feryn did constitute direct discrimination. The ECJ decided that a public statement by an employer that it will not recruit employees of a certain ethnic or racial origin is clearly likely to strongly dissuade certain candidates from submitting their candidature. Accordingly this will hinder their access to the labour market and is enough to constitute direct discrimination.
Why this matters:
Implications and Practical Pointers
- This decision extends the scope of the direct discrimination provisions so that they catch advertisements or public statements made by companies about their recruitment policy, even if such statements are not acted upon.
- Although this case was a European case there is a strong possibility that the decision will be followed by UK Employment Tribunals.
- Companies therefore need to employ extra caution when placing any sort of advert or making any public recruitment statement, because even if it is not acted upon by the company, it may give rise to discrimination claims if it is likely to dissuade certain candidates from submitting an application.
- If in doubt, companies should seek legal advice before placing advertisements or making public statements about their recruitment policy