Mon 18 Nov 2019

Can hypothetical remarks with no victim be unlawful discrimination?

In the circumstances of this case they can, and quite rightly so.

An Advocate General in the European Court of Justice plays a role which is not seen within the domestic court procedure.  While an AG is neither a judge nor prosecutor he or she does closely follow the progress of a case, listens to the legal pleas, cross examines the parties concerned and draws up conclusions.  The AG then presents those conclusions in open court and proposes a solution to the case.  The judges hearing the case are in no way compelled to adopt the recommendations, nor are the conclusions - which are usually reported some time before the Court's final judgement - legally binding.  In reality they are often, though not always, in line with the Court's final judgement and are therefore certainly worth taking note of.

In the case of NH v Associazione Avvocatura per i diritti LGBTI Advocate General Sharpston has given her opinion on whether remarks about hypothetically not hiring LGBT people are unlawful.

NH was a senior lawyer who, during an interview on a radio show, said he would never hire a homosexual person to work for his law form nor wish to use the services of such a person.  There was no active recruitment process going on at the firm at the time.  However, an Italian association of lawyers set up for the purposes of promoting the rights of and protecting LGBT persons and to take representative action on their behalf brought proceedings against NH seeking a number of remedies including that he pay damages to the association.  An Italian employment tribunal made the order requested, including requiring a payment of 10,000 Euros.   An appeal to the Italian Court of Appeal was unsuccessful, and when the matter reached the Italian Supreme Court two questions were referred to the European Court of Justice - firstly did the statement made by NH constitute discrimination under the Equal Treatment Directive which relates only to employment, and secondly is an association able to bring proceedings against NH in circumstances where there is no identifiable victim?

The Equal Treatment Directive refers to "employment and occupation" and "conditions for access to employment", but the referring Italian court expressed doubts as to whether there was a sufficient link between NH's statements and access to employment given that there was no current recruitment procedure. As such, were the statements "purely hypothetical"?  In coming to her conclusion, that the statements were capable of falling within the scope of the Directive, AG Sharpston set out a non exhaustive list of criteria to establish when a sufficient link with access to employment would arise.  This list included the status and capacity of the person making the statement, the nature and content of the statements made, the context in which the statement is made and the extent to which persons belonging to the protected group would be discouraged from applying for employment.  Furthermore, where the statement made by NH was discriminatory, it could not be considered to amount to freedom of expression under the EU Charter of Fundamental Rights.

With regard to the second question, AG Sharpston concluded that an association was able to bring proceedings against NH in circumstances where there was no identifiable victim.

In actual fact, while there might not have been a single identifiable victim of the statement made by NH, arguably there were multiple victims - any LGBT person who might have otherwise applied for a job.  No one can be expected to apply for a position if they know in advance that because of their sexuality (or indeed any other protected characteristic) they stand no chance of being employed.  AG Sharpston quoted a fellow AG in a case relating to recruitment of immigrants, saying "in any recruitment process, the greatest "selection" takes place between those who apply and those who do not".     It remains to be seen if the European Court judges will agree with AG Sharpston. 

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