In Centrum voor gelijkheid van kansen en vorr racismebestridjding v Firma Feryn NV (Case C-54/07) the ECJ held that an employer’s statement that it would not employ “immigrants” amounted to direct discrimination within the meaning of the Race Directive (2000/43). It did not matter that no individual “victim” had brought a complaint.
This case involved the director of a Belgian door-fitting firm who had stated publicly that his company would not recruit employees of certain ethnic or racial origins because its customers would be reluctant to give them access to their homes.
The Belgian Centre for Equal Opportunities and Combating Racism, the body responsible for promoting equal treatment in Belgium, brought proceedings in the Belgian Labour Courts claiming that the employer had applied a discriminatory recruitment policy. The Court dismissed its claim on the basis that there was no complainant – in other words, no-one had applied for a job at the firm and actually been turned down because of his ethnic origin. On appeal the Belgian Courts referred the matter to the ECJ for a preliminary ruling.
The ECJ held that the absence of a “victim” did not prevent the employer’s actions constituting unlawful direct discrimination within the meaning of the Race Directive. However, it said it was up to Member States to decide whether bodies such as the Belgian Centre could bring proceedings in such circumstances. It went on to say that the employer’s statement would be sufficient to shift the burden of proof (assuming legal proceedings were brought) and it would then be for the employer to prove that it had not discriminated – presumably a pretty difficult thing to do in the circumstances!
In the UK the Equality and Human Rights Commission (the body responsible for promoting equal treatment) has the power under s.28 Race Relations Act 1976 to bring proceedings where there is no “victim” but only in cases of indirect discrimination. In Percy Ingle Bakeries v Commission for Racial Equality (ET Case No: 21639/80) the Tribunal made it clear that the CRE did not have the right to bring proceedings under s.28 where an employer’s rule that candidates were “not to be Pakistani” was held to constitute direct discrimination.