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.
