A Belgian security firm decided that potential customers would be put off if their security systems were installed by Moroccan employees, and so made it clear in its advertising that it would not employ Moroccans. The Belgian Equal Treatment Body issued legal proceedings against the employer on the basis of discriminatory recruitment practices. The local court found that there could be no finding of discrimination because no job applicant had actually suffered any detriment. The equal treatment body appealed and the matter was referred to the ECJ on the interpretation of the EC Race Discrimination Directive.
The UK and Irish governments, which intervened in the case, also argued that the absence of an identifiable claimant meant that an equal treatment body could not bring a discrimination claim. The Equality and Human Rights Commission (EHRC) is the equivalent organisation to the Belgian Equal Treatment Body and it can only bring proceedings in respect of discriminatory practices. This power therefore only covers indirect discrimination.
The ECJ decided that a public statement that certain people would not be hired because of their racial or ethnic origin could constitute direct discrimination, as it would dissuade applicants from applying for a job. The ECJ did go on to state, however, that it was up to member states to determine whether to allow such claims to be brought by equal treatment bodies, in the absence of an identifiable victim.
It therefore appears for now that a case of this nature could not be brought in the UK.
Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV