Prohibition of discrimination on grounds of sexual orientation and age. Payment of a survivor’s benefit to the civil partner
Facts:
The applicant was a non-governmental organisation (NGO) that promoted lesbian, gay, bisexual and transsexual rights in Romania. It lodged a complaint to the National Council for Combating Discrimination against Mr Becali who was a shareholder in a football club and made public statements that the club would not hire a homosexual player.
The National Council for Combating Discrimination held that the proceedings did not fall within the scope of an employment relationship as the statements were not from the employer football club, its legal representative or a person responsible for recruitment.
Findings of the court:
The court made a number of findings.
Firstly, it held in applying the Feryn case C-54/07, that in cases of direct discrimination it is not necessary for an identifiable complainant. Complaints of discrimination can be brought by organisations such as NGOs.
Secondly, it held that in relation to the burden of proof, in order to prove “facts from which it may be presumed” that direct sexual orientation discrimination occurred, it was not always necessary to establish that the person making discriminatory comments had direct legal capacity to bind or represent the employer in recruitment matters. Relevant factors in this case were that the football club had taken no steps to clearly distance itself from the statements; and the perception that the public would have of the statements.
Finally, in relation to possible remedies, the court held that where a national court or tribunal can only impose warnings and not damages or other remedies which would render the sanctions effective, proportionate and dissuasive, those remedies will not be compliant with the Directive. However, it is for the national courts to make the determination on this point.
Implications:
The case highlights that employers are likely to be liable for statements by individuals where those persons are perceived as representing the employer, notwithstanding that the individuals do not actually have legal capacity to bind the employer.