Case of the week: racial discrimination

Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV

Facts

NV Firma Feryn (Feryn) is a Belgian company specialising in the sale and installation of doors. In early 2005, Feryn sought to recruit fitters to install its doors at customers’ houses.

Feryn placed a “vacancies” sign on its premises. In April 2005, a Belgian newspaper published an interview with one of the company’s directors, who was reported as saying that his company would not recruit persons of Moroccan origin because the company’s customers did not want them in their homes.

The Centrum voor Gelijkheid van Kansen en voor Racismebestrijding (Centre for Equal Opportunities and Opposition to Racism, ‘CGKR’) issued proceedings against Feryn, calling on the Belgian court to declare that Feryn had infringed the Law Against Discrimination 2003 (which incorporated the EU Race Directive into Belgian Law) and order it to end its discriminatory recruitment policy.

Decision

The court dismissed CGKR’s claim. It held that the public statements made by Feryn’s director did not constitute acts of discrimination. They were merely evidence of potential discrimination. CGKR had not claimed or demonstrated that Feryn had actually ever turned down a job application on grounds of the applicant’s ethnic origin.

CGKR appealed this decision. The appeal court decided to refer the issue to the European Court of Justice (ECJ).

The UK and Irish governments intervened in the case arguing, as in the original case in the Belgian court, that there could be no direct discrimination where an employer had not acted on its discriminatory statements. They also argued that, in the absence of an identifiable victim of discrimination a public body such as CGKR could not bring a claim before its national court.

The Advocate General’s Opinion was that the scope of the Race Directive is not limited to cases where there are identifiable complainants.

In a recruitment process, a public statement by an employer that persons of a certain racial or ethnic origin need not apply does not have a purely hypothetical effect, the Advocate General said. Such statements have a humiliating and demoralising impact on persons of that origin who would have been interested in working for the employer. This was therefore direct race discrimination.

The issue of whether a public body has the right to bring proceedings if it is not acting on behalf of a specific complainant is a matter for domestic law. Member states are not required to ensure public bodies can bring judicial proceedings in the absence of an identifiable victim of discrimination. However, member states can implement such procedures if they wish, the Advocate General said.

Implications

This case raises interesting issues about the scope of direct discrimination and the enforcement powers of equal treatment bodies, such as the Equality and Human Rights Commission (EHRC).

In the UK it is already unlawful to publish advertisements which indicate an intention to discriminate. If the Advocate General’s Opinion is followed by the ECJ, public statements indicating that an employer’s recruitment practices are discriminatory would also constitute direct discrimination.

The impact will only be felt, however, if individual complainants issue proceedings in response to an employer’s public statements of its discriminatory recruitment policy, because in the UK the EHRC does not have the legal standing to bring proceedings where there is no complainant.

Sandra Wallace, partner, DLA Piper

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