Could An Employer Discriminate Against Potential Recruits By Making Homophobic Comments On The Radio?

NH v Associazione Avvocatura per i diritti LGBTI

Case background

A senior lawyer at an Italian law firm made remarks to the effect that he would not wish to employ or work with LGBTI persons in his law firm during a radio interview. At the time that the comments were made, the firm was not recruiting nor did not receive any complaints.

An association for LGBTI lawyers brought a claim of unlawful discrimination under the Equal Treatment Framework Directive 2000/78.

Proceedings

This case was referred to the European Court of Justice (ECJ) by the Italian Supreme Court.

The ECJ considered whether having regard to the circumstances in which the comments were made, they could fall to be considered within the scope of the Equal Treatment Framework Directive.

The ECJ confirmed that there must be an actual, not hypothetical, link between the statements made and the access to recruitment in order for discriminatory statements to fall within the scope of the Directive.

Even though the law firm were not actively recruiting at the time that the remarks were made, the ECJ found that the status of the person making the remarks and the capacity in which they were made, were such that the person was a potential employer or was capable of exerting a decisive influence on recruitment policy or perceived recruitment decisions. Such remarks would be capable of hindering access to employment and might discourage persons belonging to the protected group from applying for employment.

Comment

As the Equal Treatment Framework Directive is implemented in the UK by the Equality Act 2010, this judgment will inevitably widen the scope under which discrimination claims can be brought in the UK and employers should be wary of making general public statements which might be translated back to their organisation’s recruitment policies and practices.

It is very important for employers to tackle any prejudices that their staff might have and to make sure that staff are trained on, and appreciate the importance of, equal opportunities within the workplace.

Good employers should also have an equality or equal opportunities policy as well as a grievance policy or other means by which employees can raise concerns if they feel they are being treated unfairly.