Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
Labour and Employment
4.
Discrimination and harassment
4.1
What actions are classified as unlawfully discriminatory?
Malta

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 586, 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.

It is expected that in 2019 a new Equality Act (currently in bill form) will be enacted with the aim of further prohibiting discrimination and promoting equality in various spheres of life, including in the employment context. Once enacted, this act will serve to repeal (and replace) the Equality for Men and Women Act and all subsidiary legislation promulgated thereunder. The act will seek to protect against discrimination, direct or indirect, of the following pre-defined protected characteristics: age; belief, creed or religion; colour, ethnic or national origin, or race; disability; family responsibilities or pregnancy; family or civil status; gender expression or gender identity; genetic features; health status; language; nationality; political opinion; property; sex or sex characteristics; sexual orientation; and social origin.

The act will introduce new rules against harassment, sexual harassment, victimisation and use of words to stir up hatred. Breach of the act may constitute a criminal offence punishable in terms of the Criminal Code (Chapter 9, Laws of Malta). Liability may also arise for any person who aids, abets or instigates the discrimination. Discrimination in employment will be defined to include less favourable treatment in relation to the following:

  • access to employment;
  • assessment of work applications;
  • conduct of interviews, including asking job seekers about their private life or family plans;
  • determination of selection criteria;
  • recruitment conditions;
  • provision of promotions;
  • granting of access to vocational guidance or training, including practical work experience;
  • conditions of employment;
  • pay;
  • management of work, including distribution of tasks;
  • membership of, and involvement in, any association of employees and employers, or any association whose members carry on a particular profession, including the benefits provided for by such associations;
  • redundancy; and
  • dismissal.

The prohibition of discrimination in employment shall apply to all types of employees, at all levels of the professional hierarchy, including job applicants, trainees, temporary workers and self-employed workers.

The bill envisages the introduction of a right to information from an employer (and from employment agencies). Prior to an interview, prospective employers must provide job applicants with adequate information on the selection criteria to be examined. A job applicant who is rejected shall have the right to request and receive from the prospective employer information in writing regarding the criteria on which the applicant was rejected.

Furthermore, an employee who is denied access to promotion or training opportunities shall have the right to request and receive from the employer information in writing regarding the criteria on which the employee was rejected.

As regards the principle of equal pay for equal work, the bill envisages that employees in the same class of employment are entitled to the same rate of pay for work of equal value (similar to the principle already established under Chapter 452). Employers may agree (with a worker or a union) on different salary scales, annual increments and other conditions of employment that are different for workers who are employed at different times, where such salary scales have a maximum that may be achieved within a specified period of time, as a result of negotiations for a collective agreement.

The bill emphasises the duty of employers:

  • to take, within their capacity, effective measures to prevent all forms of discrimination;
  • to inform employees of the protections established by this new law;
  • to adopt preventive measures, which must be fully implemented and monitored effectively; and
  • to ensure that remedial measures are in place if discrimination takes place.

Lastly, any person who alleges that any other person, association, organisation or legal entity has committed, with regard to that person, any act which is deemed to be unlawful under this new law may, by application filed before the Civil Court, request the court to order the defendant to desist from such unlawful acts or to order the payment of damages (including dissuasive and proportionate non-pecuniary damages up to €10,000) suffered as a direct result of such unlawful acts.

The bill (read in conjunction with another bill) envisages the creation of a new Human Rights and Equality Commission, with the power to request a newly established Equality Board to investigate complaints. Any action instituted before the court or the commission must be filed within two years of when the alleged unlawful act occurred or became known to the victim; or, if the alleged unlawful act is of a continuous nature, from when the act stopped occurring or stopped having a discriminatory effect on the victim, whichever is the earlier. It shall suffice for the plaintiff to establish before the court or before the board those facts from which it may be reasonably presumed that the alleged victim has been discriminated against on the basis of one or more of the protected characteristics. It will then be incumbent on the defendant to prove that there has been no breach of the principle of equal treatment, or that such less favourable treatment was justified in accordance with the provisions of this new act. The court or the board shall uphold the complaint if the defendant fails to prove that the unlawful act was not committed.

For more information about this answer please contact: Paul Gonzi from Fenech & Fenech Advocates
4.2
Are there specified groups or classifications entitled to protection?
Malta

Answer ... Maltese law does protect specific groups or classifications; however, protection against unlawful discrimination is not constrained to those specific groups only.

Specific subsidiary legislation gives rise to additional protection for groups such as:

  • pregnant employees and employees who have given birth;
  • parents;
  • persons seeking medically assisted procreation;
  • adoptive parents;
  • temporary agency workers;
  • posted workers;
  • part-time employees; and
  • employees on reduced hours.

For more information about this answer please contact: Paul Gonzi from Fenech & Fenech Advocates
4.3
What protections are employed against discrimination in the workforce?
Malta

Answer ... Aside from the protection already described herein, SL 452.95 expressly provides for the duty of the employer to take effective measures to prevent all forms of discrimination on the grounds of sex – in particular, harassment and sexual harassment in the workplace, in access to employment, in vocational training and in promotion.

Furthermore, any provisions contrary to the principle of equal treatment in any law, individual or collective contracts or agreements, internal rules of undertakings or rules governing any registered organisation in terms of the act will be considered null and void in terms of these regulations.

For more information about this answer please contact: Paul Gonzi from Fenech & Fenech Advocates
4.4
How is a discrimination claim processed?
Malta

Answer ... Chapter 452 of the Laws of Malta provides that any person who alleges that the employer is in breach of (or that the conditions of employment are in breach of) the rules on discrimination may, within four months of the alleged breach, lodge a complaint with the Industrial Tribunal. The Industrial Tribunal shall hear such complaint and carry out any investigations as it deems fit. The Industrial Tribunal will be composed of one chairperson alone, who must be an advocate with at least seven years’ experience.

The act also provides that an employer who contravenes or fails to comply with any provision of the act or any regulations made thereunder shall, on conviction, be liable to a fine of not less than €232.94 and not exceeding €2,329.37. Therefore, discrimination claims may give rise to criminal prosecution, which may be directed against anyone who, at the time the offence was committed, was a director, manager, secretary or other similar officer of such partnership, company, association or other body of persons, or was purporting to act in any such capacity. Such person in turn, shall be deemed to be guilty of that offence unless he or she proves that the offence was committed without his or her knowledge, and that he exercised all due diligence to prevent the commission of the offence. Proceedings for an offence may be commenced at any time within one year of the commission of the offence.

Action taken by a complainant in accordance with the act is without prejudice to any further action that such complainant may be entitled to take under any other applicable law, and shall also be without prejudice to any other action to which the respondent may be subject in accordance with any other applicable law.

In terms of claims made under SL 452.95, the person making the allegation of a breach has the right to send written notification to the employer, giving any relevant details and requesting a reply. The respondent must submit a written reply within 10 working days of receipt of such notification, giving its version of events and any grounds for disputing the allegations, as well an explanation of any relevant procedures adopted to prevent discriminatory treatment. SL 452.95 also allows for complaints to be filed before the Industrial Tribunal in terms of Chapter 452 (claims must be filed within four months of the alleged breach), and may concurrently file a claim before the civil courts requesting that the defendant desist from such unlawful act and, where applicable, order payment of compensation for damage suffered.

Employees may also have options for redress if there is a breach in terms of Chapter 456. Victims of unlawful acts defined under this law have a right to complain to the commissioner for the promotion of equality, who has the power to investigate and who, upon finding that a complaint is proved, may file a report with the commissioner of police for criminal action to commence.

The claimant also enjoys a right of action before the competent court of civil jurisdiction, to request it to order the defendant to desist from such unlawful acts and, where applicable, order payment of compensation for such damage suffered. For the purposes of these proceedings, it will suffice for the claimant to establish facts from which it may be presumed that he or she has been treated less favourably – directly or indirectly – on the basis of sex or because of family responsibilities. It will then be incumbent on the defendant or on the person against whom such proceedings are brought to prove that there has been no breach of the principle of equal treatment, or that such less favourable treatment was justified in accordance with the provisions of the act. The court must uphold the complaint if the defendant fails to prove that no illegal act has been committed.

For more information about this answer please contact: Paul Gonzi from Fenech & Fenech Advocates
4.5
What remedies are available?
Malta

Answer ... If the Industrial Tribunal is satisfied that the complaint is justified, it may impose such measures as it may deem fit, including the cancellation of any discriminatory clause in a contract or in a collective agreement, and payment of compensation for loss or damage sustained by the aggrieved party as a consequence of the breach.

For more information about this answer please contact: Paul Gonzi from Fenech & Fenech Advocates
4.6
What protections and remedies are available against harassment, bullying and retaliation/victimisation?
Malta

Answer ... Chapter 452 expressly provides that it is unlawful for an employer or employee to harass another employee or the employer by subjecting such person to any unwelcome act, request or conduct. This includes spoken words, gestures and the production, display or circulation of written words, pictures or other material which, in respect of that person, is based on sexual discrimination and which could reasonably be regarded as offensive, humiliating or intimidating to such person. The act gives examples of unlawful sexual harassment.

Chapter 452 also provides that it is not lawful to victimise any person for:

  • making a complaint to the relevant authorities;
  • initiating or participating in proceedings for redress on grounds of alleged breach of the act; or
  • disclosing information – confidential or otherwise – to a designated public regulatory body regarding alleged illegal or corrupt activities being committed by his or her employer, or by persons acting in the employer’s name and interests.

Chapter 452 provides that any person who contravenes the provisions against victimisation and harassment shall be guilty of an offence, and shall be liable on conviction to imprisonment for between six months and two years, a fine of not between €5,000 and €10,000 or both. Breaches of SL 452.95 may give rise to fines not exceeding €2,329.37, imprisonment for up to six months or both.

In terms of Chapter 456, harassment and sexual harassment are also deemed to constitute discrimination, and a person’s rejection or submission to harassment or sexual harassment may not be used as a basis for any decisions affecting that person. ‘Harassment’ is defined as “unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment”. ‘Sexual harassment’ is defined as “any form of unwanted physical, verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment”.

It is unlawful for any person to sexually harass other persons by:

  • subjecting them to an act of physical intimacy;
  • requesting sexual favours from them;
  • subjecting them to any act or conduct with sexual connotations, including spoken words, gestures, or the production, display or circulation of any written words, pictures or other material which are unwelcome to them and can be reasonably regarded as offensive, humiliating or intimidating; or
  • treating them less favourably because of their rejection or submission to a sexual request.

If a person is victimised for making a complaint or initiating or participating in proceedings for redress to the relevant authorities, discrimination is also considered to have occurred.

Chapter 456 provides that any person who sexually harasses another person shall be guilty of an offence and, without prejudice to any greater liability at law, will be liable on conviction to a fine of up to twice €2,329.37, imprisonment for up to six months or both. Liability also arises for other contraventions of the act.

For more information about this answer please contact: Paul Gonzi from Fenech & Fenech Advocates
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Labour and Employment