Employers' remarks can be direct discrimination, says ECJ

The director of a Belgian firm that fitted garage doors posted a job advert and, when asked if he was "a bit racist", indicated that he did not want to employ immigrants because his customers would not want to give them access to their houses.

Centrum voor gelijkheid van kansen en voor racismebestrijding (The Centre for equal opportunities and combating racism) sued the company, Feryn, claiming that the comments of the director were evidence of a discriminatory employment policy.

The director said, publicly, "I must comply with my customers’ requirements. If you say 'I want that particular product or I want it like this and like that', and I say 'I’m not doing it, I’ll send those people', then you say 'I don’t need that door'. Then I’m putting myself out of business. We must meet the customers’ requirements. This isn’t my problem. I didn’t create this problem in Belgium. I want the firm to do well and I want us to achieve our turnover at the end of the year, and how do I do that? – I must do it the way the customer wants it done!"

The Centre for equal opportunities and combating racism took a case in the Belgian labour courts, but the President of the Brussels Labour Court rejected the case, saying that there was no proof of discrimination and that there could not be a presumption that a person had applied for a job and had not been employed as a result of his ethnic origin.

An appeal to the Labour Court resulted in a reference to the ECJ asking whether comments made publicly could be direct discrimination, and whether those statements could lead to a presumption of discrimination, which would force an employer to prove that they were not discriminating on grounds of race.

The UK and Ireland both made submissions to the Court in which they argued that public statements by an employer could not result in direct discrimination.

The UK courts had previously ruled in a case involving Cardiff Women's Aid that a job advert which said that the employer preferred people of specified racial origin was not an act of discrimination itself, but notice of intention to discriminate.

In that case the Employment Appeals Tribunal said that individuals could not therefore make a claim for discrimination because of the advert, that only the Commission for Racial Equality could take a case.

The ECJ has found, though, that the director's comments constituted direct discrimination. "The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market, constitutes direct discrimination in respect of recruitment," said the ruling.

"The existence of such direct discrimination is not dependant on the identification of a complainant who claims to have been the victim," it said.

The Court also ruled on where the burden of proof should fall. The EU Directive on equal treatment says: "Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment".

The ECJ ruled that the comments made by the Feryn director were enough to establish a presumption of discrimination, thereby placing the burden of proof on the employer.

"Public statements by which an employer lets it be known that under its recruitment policy it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy which is directly discriminatory," it said.

"It is then for that employer to prove that there was no breach of the principle of equal treatment. It can do so by showing that the undertaking’s actual recruitment practice does not correspond to those statements. It is for the national court to verify that the facts alleged are established and to assess the sufficiency of the evidence submitted in support of the employer’s contentions that it has not breached the principle of equal treatment," said the ruling.