Rights Of Pregnant Employees

In the field of employment, there subsists a common misconception that a prospective employer enjoys absolute freedom and discretion in choice of candidates and ultimately, employees. It is also very often believed that an employer is free to reject the participation or recruitment of a pregnant woman due to the misconception that rights of persons in the employment market only commence after employment is secured and confirmed.

Contrary to such misconceptions, the law seeks to protect the vulnerability of pregnant women not only as employees but also as early as the pre-recruitment stage. The law seeks to ensure that a person is not placed in any lesser situation due to the state of pregnancy and hence imposes obligations upon the employer and grants rights to employees, to attempt to ensure such equality.

The position of pregnant women at recruitment stage is protected specifically by the Equality for Men and Women Act the enforcement of which falls under the National Commission for the Protection of Equality.

The Act renders it illegal to discriminate on the basis of pregnancy and this by virtue of Article 2(3)(c) of Chapter 456 of the laws of Malta which provides that discrimination based on sex or family responsibilities includes treating men and women less favourably on the basis of parenthood, family responsibility. It shall in fact be unlawful for employers to discriminate, whether directly or indirectly, in the arrangements made to determine or in determining who should be offered employment or in the terms and conditions on which the employment is offered or in the determination of who should be dismissed from employment – therefore terms for engagement and conditions of employment cannot be couched in a manner that create direct or indirect discrimination.

The law however acknowledges that an employer or prospective employer may take decisions based on pregnancy which do not constitute discrimination provided such decisions are rooted in the protection of the pregnant woman. In fact, the law specifies that nothing in the article defining discrimination shall be deemed to constitute discrimination in so far as such treatment is given to grant special protection to women during childbirth or pregnancy. Furthermore, in relation to access to employment, a less favourable treatment which is based on a characteristic related to sex, shall not constitute discrimination where by reason of the particular occupational activities concerned, or of the context in which they are carried out, such a characteristic constitutes a genuine occupational requirement and where such treatment remains within the limits of what is appropriate and necessary in the circumstances. In such cases, the burden of proof shall lie on the person who alleges that there is a genuine occupational requirement. A pregnant woman who feels that she has been discriminated against on the basis of pregnancy may prove such discrimination by any means of evidence including statistical evidence.

The law does not stop at enunciating general principles and in fact regulates tangible rights and obligations. The Equality for Men and Women’s Act specifically regulates equality right from the start of the employment process, that is to say, advertisements for posts. Article 10 of the Act provides that it shall be unlawful for persons to publish or display or cause to be published or displayed any advertisement, or, otherwise to advertise a vacancy for employment which discriminates between job seekers or to request from job seekers information concerning their private life or family plans. Advertising includes disseminating information about the vacancy by word of mouth from person to person. Therefore, by virtue if this Article, prospective employees are not obliged to divulge family plans, including current pregnancy, upon application for employment. Breach of this obligation constitutes an offence. In this scenario too, the law does allow employers to request specific characteristics or exclude others if the work in connection with the situation advertised can only be performed by a person of a specific sex. Such interpretation may extend to pregnancy as it is just for an employer to exclude pregnant women from candidature if the post advertised requires specific activity that may endanger the mother and child or where the post, of its very nature, requires a particular sex.

Pregnant women and any person having any family commitments may therefore rely on the protection of law to ensure an equal playing field and furthermore ensure that the family circumstances or family plans are not a hindrance to equal treatment or equal opportunities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.