Wed 29 Apr 2020

European Court of Justice confirms remarks with no victim can be unlawful discrimination

The remarks were made during a radio interview and an association that promoted and protected the rights of LGBT persons subsequently raised an action.

In May last year, Advocate General Sharpston gave her opinion in the case of NH v Associazione Avvocatura per i diritti LGBTI.  A senior lawyer, NH, had said during a radio interview that he would never hire a homosexual person to work for his law firm nor wish to use the services of such a person.  Although there was no recruitment process going on at the firm at the time an association set up to take representative action on behalf of LBGT persons brought proceedings against NH seeking a number of remedies including that he pay damages to the association.  The association were successful at an Italian tribunal and in the Court of Appeal.  When the matter got to the Italian Supreme Court two questions were referred to the European Court of Justice - did the statement made by NH constitute discrimination under the Equal Treatment Directive ("ETD") and was the association able to bring proceedings against NH where there was no identifiable victim?  Advocate General Sharpston answered both questions in the affirmative.

The matter has now been considered by the European Court of Justice.  In the Judgment of the Court, in circumstances such as this for statements to fall within the scope of the ETD it is necessary that they be capable, in fact, of being related to the recruitment policy of a given employer.  Whether such a link exists must be assessed by the national court hearing the case.  The relevant criteria for that assessment are: (i) the status of the person making the statements and the capacity in which they were made - is the individual a potential employer capable of exerting influence on recruitment policy, or at least perceived as being capable of doing so; (ii) do the statements relate to the conditions for access to employment with the employer concerned and establish an intention to discriminate; and (iii) the context in which the statements were made, in particular their public or private character. 

To the extent that this interpretation of the ETD limited freedom of expression, the Court was of the view that those limitations were applied for the purposes of the ETD attaining its objectives of safeguarding the principle of equal treatment in employment and were justified.

The Court also concluded that while the ETD does not mandate that an association must have standing to bring proceedings in circumstances where it was not possible to identify an injured party, Member States have the option to introduce provisions which are more favourable than those which the ETD contains.

The Court picked up on a point highlighted by AG Sharpston in her Opinion which makes the decision in this judgment seem very logical. AG Sharpston made the point that in any recruitment process the principal selection takes place between those who apply and those who do not.  The expression of discriminatory opinions in matters of employment by a person perceived as being capable of exerting a decisive influence on an undertakings recruitment policy is likely to deter the individuals targeted from applying for a post with that undertaking.  The matter will now return to the national court for a final decision.


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