Director of a Belgian company Feryn specializing in the sale and installation of doors in an interview stated that he would not employ “immigrants”, because the clients of the company do not wish to grant access to their property to these persons. State agency promoting equal treatment applied to the Belgian labour courts for a finding that Feryn applied a discriminatory recruitment policy.
Question referred to the CJEU by the national court
Can the abovementioned public statement be considered a direct discrimination? If an employer applies directly discriminatory selection criteria to select employees, is it considered direct discrimination?
The Court stated that in accordance with the EU law the fact that there is not an identifiable complainant in the case cannot itself lead to conclusion that a direct discrimination has not taken place. As the aim of the law is to foster conditions for a socially inclusive labour market, it covers also criteria and recruitment conditions. Therefore the fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment.
The Court further noted that although the EU law in question does not provide for a complaint and review mechanism for the abovementioned situation, the member states are allowed to introduce it. In any case, according to the Court, where a claim of direct discrimination is brought before a national court, the employer has to prove that he has not violated the prohibition of discrimination. In a case concerning discriminatory selection criteria, it could be proven, for example, by showing that the actual recruitment practice is not discriminatory.