Case update (2):  Discrimination – expanding the scope

Summary:  If an employer announces during a radio interview that they would never hire (or wish to work with) a homosexual, are they guilty of discrimination even in circumstances where there was no hiring process ongoing at the time of the comment?

Yes, says the European Court of Justice (CJEU) in NH v. Associazione Avvocatura per i diritti LGBTI (Case C-507/18) (“CJEU”), available here.

Facts:  An Italian lawyer stated in an interview given in a radio programme that he would not recruit or work with anyone who was homosexual at his firm.  His firm was not recruiting at the time and they did not receive complaints from any individuals. However, an association defending the rights of LGBT people in court brought an action against him for damages.

The case came before the Italian Supreme Court who, in turn, made a reference to the CJEU, asking: “Does a statement expressing a negative opinion with regard to homosexuals, whereby the interviewee stated that he would never recruit an LGBTI person to his law firm, nor wish to use the services of such persons, fall within the scope of the anti-discrimination rules of the EU Equal Treatment Directive, even where no recruitment procedure has been opened, nor is planned, by the interviewee”?

The CJEU held that statements suggesting the existence of a homophobic recruitment policy can fall within the Directive as long as the link between the statements and the recruitment policy is not merely theoretical. To assess the link, national courts should consider:

• 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) and
• 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; and
• the nature and content of the statements and the context in which they were made (in particular whether made publicly or privately).

The CJEU noted that although this interpretation might entail restrictions on freedom of expression, this is not an absolute unfettered right and may be subject to limitations. In this case the limitations on freedom of expression resulted from the Equal Treatment Directive and were necessary to uphold the principle of equal treatment in employment and occupation.

Implications:  This decision will inevitably expand the scope of discrimination claims in the UK.  Employers should be alert to the potential consequences of employees making general public statements which might be translated back to their organisation’s recruitment policies and practices.  In particular, employers should ensure that all employees involved in (or perceived to be involved in) recruitment processes are aware of their obligations in this respect.