Answer ... In Malta, various laws regulate equal treatment and thus classify potential unlawful discriminatory actions. In the employment context, the more far-reaching legislative provisions are those contemplated by the Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta.
The Employment and Industrial Relations Act defines ‘discriminatory treatment’ as any distinction, exclusion or restriction which is not justifiable in a democratic society. This includes, but is not limited to, discrimination on the basis of marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership of a trade union or in an employers’ association. The act protects employees from dismissals which – albeit made on prima facie legitimate grounds, such as redundancy, or for good and sufficient cause – would be discriminatory. It includes a comprehensive article which prohibits discriminatory treatment throughout the employment lifecycle: during any advertising or offering of employment, during the selection process, during employment regarding conditions of employment and on dismissal.
The act clarifies that discriminatory treatment includes:
- the hiring or selection of a person who is less qualified than a person of the opposite sex, unless the employer can prove that the action was based on acceptable grounds relating to the nature of the work or on grounds relating to previous work performance and experience;
- actions which apply to an employee, terms of payment or employment conditions that are less favourable than those applied to an employee undertaking the same work or work of equal value, based on discriminatory treatment; and
- actions whereby the employer knowingly manages the work, distributes tasks or otherwise arranges the working conditions so that an employee is assigned a clearly less favourable status than others based on discriminatory treatment.
The act recognises that in certain instances, preferences or exclusions may be permitted where they are reasonably justified considering the nature of the vacancy to be filled or the employment offered, where a required characteristic constitutes a genuine and determining occupational requirement or where required by law.
Equal treatment in employment is further regulated at length by the Equal Treatment in Employment Regulations (SL 452.95), which give effect to the relevant provisions of EU Directives 76/207/EEC, 2000/78/EC, 2000/43/EC, 2002/73/EC and 2006/54/EC. These too have far-reaching implications relevant to the employment lifecycle. These regulations also refer to the Equal Opportunities (Persons with Disabilities) Act (Chapter 413, Laws of Malta) which introduce rules against discrimination of persons with disability and which mandate accommodation of persons with disabilities.
SL 452.95 imposes prohibitions against discriminatory treatment, including harassment and sexual harassment, whether direct or indirect, on the grounds of religion or religious belief, disability, age, sex, sexual orientation, and racial or ethnic origin. Indirect discriminatory treatment is taken to occur where an apparently neutral provision, criterion or practice would put persons of a particular race or ethnic origin or having a particular religion or religious belief, disability, age, sex, or sexual orientation at a disadvantage when compared with other persons, unless objective justification apply.
Other laws that protect employees against unlawful discriminatory treatment include the Equality for Men and Women Act (Chapter 456, Laws of Malta), which focuses on discrimination based on sex, family responsibilities, sexual orientation, age, religion or belief, racial or ethnic origin, or gender identity, gender expression or sex characteristics. It also covers the treatment of a person in a less favourable manner than another person is being, has been or would be treated on these grounds. In general terms, the scope of this act includes direct and indirect discrimination in the workplace at all stages of employment, including advertising for recruitment, the recruitment process itself, who is offered employment, the terms on which employment are offered, the way work tasks are divided, salary and benefits, training opportunities, promotions and dismissal. ‘Discrimination’ is defined in Chapter 456 as:
- directly or indirectly treating men or women less favourably on the basis of sex, family responsibilities, sexual orientation, age, religion or belief, racial or ethnic origin, or gender identity;
- treating a woman less favourably for reasons of actual or potential pregnancy or childbirth;
- treating men and women less favourably on the basis of parenthood, family responsibility or for some other reason relating to sex, sexual orientation, age, religion or belief, racial or ethnic origin, or gender identity; and
- implementing provisions, criteria or practices which would put persons at a particular disadvantage compared with persons of another sex (or the same sex), sexual orientation, age, religion or belief, racial or ethnic origin, or gender identity, gender expression or sex characteristic, unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.