Employment Law Cases

NH v Associazione Avvocatura per i diritti LGBTI

A lawyer’s statement in a radio interview that he’d never recruit a homosexual person for his firm was covered by the EU Equal Treatment Directive, even if no recruitment procedure was in existence at the time such a statement was made.

Background

NH, a lawyer in an Italian law firm, gave a radio interview during which he said that he would not hire a homosexual person to his firm nor use the services of such persons in his firm.

An association of Italian lawyers representing the rights of LGBTI people believed that his comments amounted to discrimination on the grounds of sexual orientation and brought an action for damages against him. An Italian court upheld their claim and ordered NH to pay damages of €10,000. NH appealed, lost again and ended up taking his case to the Italian Supreme Court which referred the issue to the ECJ, specifically on the interpretation of the concept  of ‘conditions for access to employment … and to occupation’ in the Equal Treatment Directive.

ECJ decision

The ECJ had little difficulty in finding that statements ‘suggesting the existence of a homophobic recruitment policy’ do fall within the concept of ‘conditions for access to employment … or to occupation’ - in circumstances where the link between the person making the statement and the relevant organisation’s recruitment policy are more than ‘purely hypothetical’. This is a question of fact determinable by:

• considering whether the speaker has a role at an employer with a capacity decisively to influence recruitment policy, or at least where the public may perceive him/her as having that influence
• whether the comments relate to the employer and establish the intention to discriminate in recruitment, and
• the public nature of such statements

The ECJ recognised that its decision might entail a possible limitation to the exercise of freedom of expression. However, it emphasised that freedom of expression is not an absolute right and that its exercise may be subject to limitations. It found that those limitations were engaged in the present case because the Equal Treatment Directive had been implemented with the purpose of safeguarding the principle of equal treatment in employment and occupation and the attainment of a high level of employment and social protection.

Link to the judgment: https://www.bailii.org/eu/cases/EUECJ/2020/C50718.html

Comment

This case is a useful reminder of the wide reaches of the anti-discrimination legislation and why any public comment on such matters should be well thought out and not indicate any personal prejudices, which in employment and other contexts, would also be unlawful. Any senior person commenting in public on their discriminatory views of who should be working for them, and which could shape their recruitment policy, can rightly expect to be on the wrong end of a claim of this kind.