IN ORDER to bring a successful discrimination claim in the EU, a claimant has to establish a ‘prima facie’ case of discrimination to prove their employer discriminated against them. The employer must then persuade the tribunal there is a non-discriminatory reason for the treatment. In a recent case in Romania the concept of the burden of proof in discrimination claims was put under the spotlight.
The case concerned comments made by Mr Becali, a patron and prominent shareholder of Steaua Bucharest FC. Mr Becali was a senior shareholder and, although he was not legally capable of making binding decisions about recruitment, he was perceived by the media and the public as a key figure in the club’s leadership.
During an interview, Mr Becali stated he would never purchase or sign a homosexual football player. In response to this comment, ACCEPT, a non-Governmental organisation that aims to promote and protect lesbian, gay, bisexual and transsexual rights lodged a complaint against the club and Mr Becali before the National Council for Combating Discrimination.
ACCEPT claimed that the comments constituted discrimination on the grounds of sexual orientation. The National Council found that the statement made by Mr Becali could not be regarded as emanating from the football club as an employer. ACCEPT appealed against this decision to the Romanian Court of Appeal, which referred the matter to the European Court of Justice (ECJ) for a preliminary ruling.
The ECJ found that a ‘prima facie’ case of discrimination could be inferred from Mr Becali’s comments, despite the fact he did not have the power to make policy or recruitment decisions. The ECJ also found the fact that the club had not clearly distanced itself from his statements relevant.
An employer doesn’t have to prove people of that particular sexual orientation had been recruited in the past in order to rebut the presumption of discrimination, as it might interfere with other employees’ rights to privacy. Other evidence, however, such as the production of an equal opportunities recruitment policy could be used.
In this case the Romanian courts will decide the outcome, taking into account the ECJ’s considerations. This case may seem alarming for employers as it potentially widens the scope of discrimination law and means that employers can be liable for comments made by those who are not employed by them. However, the ECJ did note that it is possible to limit the damage caused. Employers in a similar situation would be wise to condemn discriminatory comments as soon as possible and ensure they have evidence to rebut the presumption of discrimination, such as an equal opportunities policy and proof that managers have received diversity training.
:: James Wilders, employment lawyer at the region’s leading law firm, Bond Dickinson.