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Barry  Stanton
Barry Stanton,
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Trouble on the Airwaves
27 November 2019

Co-authored by Jemille Gibson and Barry Stanton

If an employer announces during a radio interview that they would never hire (or wish to work with) anyone from a group protected by employment legislation, are they guilty of discrimination notwithstanding that there was no hiring process ongoing at the time of the comment?

It would appear so, following C-507/18 NH v Rete Lenford in the European Court of Justice (“ECJ”).

Background

NH was a senior lawyer at an Italian law firm. During an interview with a radio programme, NH stated that he would never hire a homosexual person to work at his law firm, nor would he wish to use the services of such persons. At the time of the comments, no vacancies were available at NH’s law firm, nor was any recruitment in progress.

Rete Lenford, an association of lawyers founded to represent the interests of LGBTI persons (the “Association”) brought actions in the Italian court system, alleging the comments were discriminatory and unlawful. The Association was successful, and as the matter rose through the court system with NH’s appeals, it was referred to the ECJ.

Question

Two questions were referred. For the purposes of this article, we focus on the second question as follows:

…does a statement expressing a negative opinion with regard to homosexuals, whereby, in an interview given during a radio entertainment programme, the interviewee stated that he would never appoint an LGBTI person to his law firm, nor wish to use the services of such persons, fall within the scope of… anti-discrimination rules… even if that statement does not relate to any current or planned recruitment procedure by the interviewee?

Decision

Advocate General Sharpston (“AG Sharpston”) suggests that it does. The Directive on equal treatment in employment (2000/78) (the “Directive”), incorporated into UK law via the Equality Act 2010 (“EA10”), seeks to protect access to employment. AG Sharpston noted that a choice not to hire certain persons because of their sexual orientation would clearly hinder that group’s access to employment.

AG Sharpston gave the following non-exhaustive criteria to establish whether a discriminatory statement may fall within the scope of the Directive:

  1. The status and capacity of the person making the statements;
  2. The nature and content of the statements, with a rebuttable presumption that even if no recruitment process is currently ongoing, that an intention to discriminate will come into effect once a process starts;
  3. The context in which the statements were made. It was made clear that any suggestion that a statement was just a joke would not wash;
  4. The extent to which the above may discourage members of the protected group from applying to the employer.

NH was a senior lawyer discussing his own law firm. He had formed a criterion which would exclude potential homosexual applicants.

The statements were made on the radio, broadcast to the public, and disseminated widely. There was an obvious likelihood of deterring potential applicants to his firm.

The statements were capable of engaging the Directive as hindering access to employment on grounds of sexual orientation.

Lessons

In the UK, the Association (or any equivalent) would not be able to bring an action in this way against a discriminatory employer. An employee or potential employee would have to do so. However, a representative body may well assist an employee in collecting evidence of public, discriminatory statements.

Of note is that this action was brought against NH as an individual. His law firm was not included in the action. This may have been for several reasons for this, which are not clear from the Opinion, but it is likely that in the UK, an employee or potential employee would include the employer as well.

Plenty of scope was also given for statements like this not to engage the Directive, and it is left to national courts to assess whether an intention to discriminate applies in circumstances where the statement is made without an ongoing hiring process. A person, who is not in any position to carry out such a policy because he has no role or influence in recruitment, or where the remarks are made in private, would not be liable for restricting access to employment.

Employers should be aware of the risks arising when senior employees appear in public. An additional risk comes from social media comments, made individually or on behalf of their company. Given the number of public scandals arising from social media comments, typically made several years ago, employers should be alive to the fact their comments (or those of senior employees) may carry far further than they intended.

Notes

So far, only the Advocate General’s Opinion has been released. This is not the ECJ’s judgment and it is open to the ECJ not to follow the Opinion, but they almost always do.

Although this is a European Union case, the Directive which it covers is incorporated into UK law via EA10. This is highly unlikely to change whether or not the UK leaves the European Union.

To find out more about how our Employment team can help you visit their HR Solutions website or contact the team by email at [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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