Public statements of a discriminatory policy amount to direct discrimination

In Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV a Belgium door fitting firm put up a large roadside sign advertising vacancies. The employer subsequently stated in the media that he would not employ Moroccans as his customers were scared of them breaking into their houses. Employing immigrants would be ‘putting himself out of business’.

The Belgian anti-racism body (the CGKR) brought proceedings against the firm, asking a court to order it to end its discriminatory recruitment policy. However the difficulty for CGKR was that it had not claimed nor demonstrated that an applicant had actually been turned down for a job on the ground of ethnic origin, so the  question of whether the CGKR could bring proceedings against an employer, where there was no actual claimant, was referred to the ECJ.

The Advocate General held that an employer commits direct discrimination contrary to the Directive in circumstances where he makes discriminatory statements. Excluding such discrimination from the scope of the Directive would mean racist employers could avoid employing minorities ‘simply by publicising the discriminatory character of their recruitment policy as overtly as possible beforehand.’ But the Directive did not allow bodies such as the CGKR to bring public interest claims where no identifiable person had been discriminated against, although Member States could introduce legislation giving such bodies the standing to bring such a claim.

The final judgment in the ECJ may impact ion UK law as there is no basis for a claim unless a ‘victim’ comes forward. The Equality and Human Rights Commission (EHRC) does have the power to issue proceedings under S.28 of the Race Relations Act 1976 in respect of indirectly discriminatory practices, but the Act does not outlaw directly discriminatory practices and therefore the EHRC does not have the power to bring complaints where there is no victim.