Employment Law E-Bulletin

Cases: April 08

Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV

The Advocate General (AG) has handed down his opinion in this tongue twister of a discrimination case. As highlighted in last month’s bulletin an opinion is not a judgment, but an indication of what the judgment in a matter might be.

The employer in this case (‘Feryn’) sold and installed doors.  This means that employees were required to go into the homes of customers to fit the product. The employer used a large notice along the side of a major road to advertise vacancies, the notice itself was not discriminatory, but one of the firm’s directors was interviewed in a newspaper in relation to the job vacancies and said that the firm would not recruit people of Moroccan origin. His reasoning for this was that his customers did not want Moroccans in their homes and that employing Moroccans would put ‘Feryn’ out of business.

This remark came to the attention of an anti-discrimination group within Belgium who sought to bring a claim against ‘Feryn’ despite the fact that no Moroccan had actually applied for a job at the company.  There was essentially no ‘victim’ when the claim came before the courts.

The case was referred to the Europe Court of Justice and the opinion recently given by the AG states that the comments made by the director amount to direct discrimination under the Directive.  The AG felt that the comments were more than just an indication of potential discrimination as they would deter Moroccans from applying in the first place.  However, the AG went on to say that this does not mean that anti-discrimination bodies can bring claims in the public interest when there is no victim.  The legislation in the Member States will need to specifically allow for this first.

If this opinion is followed, comments by an employer prior to recruitment will be enough to give rise to a claim, but unless the law in this country is changed, public interest groups cannot bring claims so someone will have to come forward to complain.

Millbrook Proving Ground Ltd v Jefferson

In this case the employee, Mr Jefferson, had a clean disciplinary record and was known as a good and honest worker. However Mr Jefferson made racist comments whilst at work and complaints were made.

Mr Jefferson was dismissed for his comments and the Employment Tribunal held that the dismissal was unfair because insufficient investigation had been conducted into the alleged comments.  The Tribunal felt that dismissing Mr Jefferson in this situation was outside the range of reasonable responses.

The EAT disagreed and felt that because Mr Jefferson had admitted to making the comments, the employers had conducted all the investigation that was necessary in order to believe that Mr Jefferson was guilty of a gross misconduct offence. The EAT referred the issue of whether dismissal was a reasonable response back down to the Employment Tribunal.

This case is reassuring for employers in that it shows if there has been an admission by the employee in a disciplinary situation then an exhaustive investigation may not be necessary in order to make a dismissal fair. However, as this case highlights, the dismissal will still needs to fall within the range of reasonable responses.

English v Thomas Sanderson Blinds

Mr English brought a claim for sexual orientation harassment, as he was the subject of homophobic comments at work, despite the fact that his colleagues knew that he was not homosexual.

It was accepted by Mr English that those who ‘teased’ him knew that he was heterosexual, but Mr English said that the comments about his sexual orientation had started when a manager learnt that he had gone to boarding school and lived in Brighton.

The Employment Tribunal held that Mr English had not been discriminated against within the meaning of the Employment Equality (Sexual Orientation) Regulations 2003 because he was not homosexual, his colleagues did not believe that he was homosexual and he was not being discriminated against due to the sexuality of someone else.

The EAT upheld this decision, however, they felt that the outcome was unfortunate and that the Regulations may not have properly incorporated the relevant Directive into UK law. Permission has been granted for Mr English to appeal to the Court of Appeal.

Despite the EAT’s reservations the decision means that employees cannot bring claims against their employers simply because colleagues are using sexuality as a way to harass them. Employees must be able to fit their claim within one of the grounds in the Regulations.  This means that, until further notice, an employee must actually be of a particular sexual orientation and subject to discrimination on those grounds to benefit from protection.


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April 08