The European Court of Justice recently clarified and extended the scope of EU anti-discrimination rules. In two separate judgments it has affirmed that EU law protects an employee who has suffered discrimination on grounds of his child's disability and that it is strictly illegal for an employer to make it publicly known that it does not recruit employees of a particular ethnic origin.
One of the cases was triggered by the mother of a disabled son who had lost her job after demanding flexible working arrangements because of her caring responsibilities. The plaintiff claimed she had faced abusive and insulting comments about her and her ill child and that she had been treated less favourably than other employees due to the fact that she was the primary carer of a disabled child. A reference for a preliminary ruling was made by the national employment tribunal to the European Court of Justice requesting guidance as to whether EU law on equal treatment in employment and occupation offers protection against discrimination only to disabled persons or whether it also protects those who provide care to a handicapped relative.
The European Court of Justice asserted that in terms of EU law, both direct and indirect discrimination and harassment on the ground of disability is prohibited. Such protection is afforded to all persons in relation to employment and working conditions, including dismissals and pay. It continued to affirm that the principle of equal treatment as enshrined in the law must not be given a narrow interpretation so as to prohibit only direct discrimination on grounds of disability and relating exclusively to disabled people. The court maintained that an interpretation of the law limiting its application only to people who are themselves disabled is liable to deprive the law of an important element of its effectiveness. To this end, it concluded that EU law strictly prohibits the unequal treatment and harassment of an employee on the basis of the fact that he is the primary care giver to a disabled relative.
In another judgement, the European Court of Justice warned employers that they should not make public statements to the effect that in terms of their recruitment policy they do not recruit employees of a particular ethnic or racial origin. Such conduct constitutes direct discrimination which is strictly prohibited in terms of EU law and is not justifiable by the fact that the employer's customers are reluctant to be served by persons of such an ethnic or racial origin. The illegality persists even if there is no identifiable complainant who considers himself to be the victim of such discrimination. To this end, the court emphasised that member states are obliged to provide effective, proportionate and dissuasive sanctions, even where there is no identifiable victim.
The significance of these rulings cannot be underestimated. Since EU law covers other grounds of discrimination besides disability, the European Court of Justice has now thrown the door wide open for employees to seek protection from associative discrimination possibly even in the areas of religion or belief, age and sexual orientation. Employers are obliged to tread more carefully both in ensuring that they practise a recruitment policy which respects the fundamental principle of non-discrimination and in affording equal treatment to employees in line with EU anti-discrimination laws.
Dr Vella Cardona is a freelance consultant in EU, intellectual property and competition law. She is also a visiting lecturer at the University of Malta.
One of the cases was triggered by the mother of a disabled son who had lost her job after demanding flexible working arrangements because of her caring responsibilities. The plaintiff claimed she had faced abusive and insulting comments about her and her ill child and that she had been treated less favourably than other employees due to the fact that she was the primary carer of a disabled child. A reference for a preliminary ruling was made by the national employment tribunal to the European Court of Justice requesting guidance as to whether EU law on equal treatment in employment and occupation offers protection against discrimination only to disabled persons or whether it also protects those who provide care to a handicapped relative.
The European Court of Justice asserted that in terms of EU law, both direct and indirect discrimination and harassment on the ground of disability is prohibited. Such protection is afforded to all persons in relation to employment and working conditions, including dismissals and pay. It continued to affirm that the principle of equal treatment as enshrined in the law must not be given a narrow interpretation so as to prohibit only direct discrimination on grounds of disability and relating exclusively to disabled people. The court maintained that an interpretation of the law limiting its application only to people who are themselves disabled is liable to deprive the law of an important element of its effectiveness. To this end, it concluded that EU law strictly prohibits the unequal treatment and harassment of an employee on the basis of the fact that he is the primary care giver to a disabled relative.
In another judgement, the European Court of Justice warned employers that they should not make public statements to the effect that in terms of their recruitment policy they do not recruit employees of a particular ethnic or racial origin. Such conduct constitutes direct discrimination which is strictly prohibited in terms of EU law and is not justifiable by the fact that the employer's customers are reluctant to be served by persons of such an ethnic or racial origin. The illegality persists even if there is no identifiable complainant who considers himself to be the victim of such discrimination. To this end, the court emphasised that member states are obliged to provide effective, proportionate and dissuasive sanctions, even where there is no identifiable victim.
The significance of these rulings cannot be underestimated. Since EU law covers other grounds of discrimination besides disability, the European Court of Justice has now thrown the door wide open for employees to seek protection from associative discrimination possibly even in the areas of religion or belief, age and sexual orientation. Employers are obliged to tread more carefully both in ensuring that they practise a recruitment policy which respects the fundamental principle of non-discrimination and in affording equal treatment to employees in line with EU anti-discrimination laws.
Dr Vella Cardona is a freelance consultant in EU, intellectual property and competition law. She is also a visiting lecturer at the University of Malta.