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Expanding Discrimination Claims

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Can discriminatory remarks made by an employer in a radio interview come within the EU's Equal Treatment Directive and so found a discrimination claim?

Yes, held the European Court of Justice in NH v Associazione Avvocatura per i diritti LGBTI (Case C-507/18).

The owner of a law firm made remarks in a radio interview to the effect that he would not wish to employ or work with LGBTI people. The firm wasn't hiring anyone at the time, and no individual complained. However a complaint was filed by an association interested in protecting LGBTI rights in the Italian courts (as Italian law permits).

The CJEU considered two questions. The first related to whether the impugned words came within the scope of the directive. They could, so founding a discrimination claim; the Court set out factors to consider at paragraphs 44 to 46:

1. The status of the person making the remarks, and the capacity in which they were made, which must show that the person is a potential employer or is capable of exerting a decisive influence on recruitment policy or decisions (or may be so perceived).

2. The remarks must relate to the conditions for access to employment with the employer concerned and establish an intention to discriminate contrary to the directive.

3. The context of the statements, whether they were public or private, or were broadcast to the public, whether on traditional or social media.

Further, the fundamental right to freedom of expression is subject to limitations such as safeguarding equal treatment in employment. Freedom of expression may be limited to attain the objectives of the Equal Treatment Directive. The protection of the directive would be illusory if NH's remarks weren't actionable because they were made outwith a recruitment procedure, or were a personal opinion. Remarks would be actionable provided that the link between the statement and the conditions for access to employment or occupation within that employer's business were 'not hypothetical', which is a matter for the national courts to establish.

The other question related to whether the directive prevented national legislation from allowing interest groups to bring proceedings in the absence of a complainant, it did not.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.