New EU judgement: Employees who show support to discriminated job applicants is also protected against discrimination pursuant to the rules on victimising

By Mia Boesen, Pia Skovgaard Hansen, Søren Pedersen

09-2019

The European Court of Justice has stated that employees who have knowledge about colleagues or job applicants being discriminated and in this connection support these colleagues or job applicants are protected against discrimination pursuant to the rules on victimising.

The circumstances of the case:

On 20 June 2019, the European Court of Justice delivered a judgement in a case where a Belgian job applicant, A, was refused a job due to her pregnancy.

During the job interview, A informed the interviewer, B, that she was 3 months pregnant. B, who was employed in the company in question, C, believed that A was qualified for the position, which she informed C. Despite this, C chose to refuse to employ A because of her pregnancy. In this connection, B informed C that their refusal of B because of her pregnancy would constitute a violation of the Equal Treatment Act. Consequently, B informed A of the refusal and at the same time informed her that this was because of her pregnancy.

Subsequently, A raised a claim against C for gender discrimination. In this connection, C criticized B, as C blamed B for the claim regarding discrimination. 6 months after this episode, B was dismissed by C. The dismissal was according to C not caused by B's behaviour in connection with the rejection of A, but was due to lack of performance. However, as B believed the dismissal of her was substantiated in her support to A, B raised a claim against C for gender discrimination pursuant to the rule regarding victimising.

The European Court of Justice's comments:

In connection with the judgement, the European Court of Justice stated that the rules regarding victimising is not only limited to official witnesses in a claim regarding the company, "but should also extend to persons who defend or support the person who has lodged a complaint of discrimination on grounds of sex".

Therefore, it is the European Court of Justice's interpretation that the rule regarding victimizing also extends to the arrangements an employer may make as a reaction to a claim regarding discrimination. If the rule regarding victimizing is not extended to apply widely, this may entail that the employees with the best qualifications to support a colleague or an applicant who has filed in a claim regarding gender discrimination would be frighten to support the colleague or the applicant for fear of being subsequently dismissed.

Such fear would be damaging for the implementation of the purpose of the Equal Treatment Act.

Consequently, the European Court of Justice reached to the conclusion that the dismissal of B was a violation of the Equal Treatment Act.

Bird and Bird's comments:

With this judgement, the rule regarding victimising is extended to apply to employees who support or defend people who have filed in a claim regarding discrimination, and it entails in general that employers must be careful when dismissing employees who have shown support in connection with a case regarding discrimination.

Therefore, it is important to ensure that a dismissal can be substantiated in either the employee's or the employer's conditions which cannot be connected with the employee's support to a person protected from discrimination and that the employer is able to provide documentation thereof.

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