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;
- 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
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.