ICLG to Employment & Labour Law 2021 – Discrimination
3.1 Are employees protected against discrimination? If so, on what grounds is discrimination prohibited?
The right to protection from discrimination on the grounds of race, place of origin, political opinions, colour, creed, sex, sexual orientation or gender identity is enshrined in Article 45 of the Constitution of Malta. The Maltese Constitution further promotes equal rights of men and women, whereby the State has a particular duty to ensure that women workers enjoy equal rights and the same wages for the same work as men.
The EIRA defines discriminatory treatment as “any distinction, exclusion or restriction which is not justifiable in a democratic society including discrimination made on the basis of marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership in a trade union or in an employers’ association”. This list is not an exhaustive one, and therefore, the law does not preclude the possibility of other acts constituting discriminatory treatment. A number of subsidiary legislations enacted under the EIRA further strengthen the prohibition against discrimination. These include the Equal Treatment in Employment Regulations, Subsidiary Legislation 452.95, the Persons with Disability Act, Chapter 210 of the Laws of Malta, and the Equal Opportunities (Persons with a Disability) Act, Chapter 413 of the Laws of Malta. Sexual and gender discrimination is further prohibited in virtue of the Equality for Men and Women Act, Chapter 456 of the Laws of Malta.
3.2 What types of discrimination are unlawful and in what circumstances?
The EIRA explicitly prohibits any form of discrimination on grounds of marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership in a trade union or in an employers’ association. However, this list is a non-exhaustive one as the EIRA further explains that discriminatory treatment may also include any distinction, exclusion or restriction which is not justifiable in a democratic society.
Discriminatory treatment is prohibited at all stages of employment, including at the advertising, recruitment, employment and termination stages. In fact, an employer may not engage or select a person who is less qualified than another person of the opposite sex, unless an employer has justifiable reasons for doing so such as due to the nature of the work or due to previous work performance and experience. Furthermore, the EIRA enshrines the principle of equal work for equal value, whereby employees in the same class of employment shall receive the same terms of payment and employment conditions.
3.3 Are there any special rules relating to sexual harassment (such as mandatory training requirements)?
Sexual harassment is explicitly prohibited under Maltese law, particularly in virtue of the EIRA, the Equal Treatment in Employment Regulations and the Equality for Men and Women Act. In fact, Maltese law explicitly prohibits an employer or an employee from sexually harassing another employee or the employer by:
1. subjecting the victim to an act of physical intimacy;
2. requesting sexual favours from the victim;
3. subjecting the victim to any act or conduct with sexual connotations, including spoken words, gestures or the production, display or circulation of written words, pictures or other material where the act, request or conduct is unwelcome to the victim and could reasonably be regarded as offensive, humiliating or intimidating to the victim; or
4. treating the victim differently, or it could reasonably be anticipated that the victim could be so treated, by reason of the victim’s rejection of or submission to the act, request or conduct.
Although Maltese law does not explicitly impose any mandatory training requirements against sexual harassment, an employer is legally obliged to take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment at the workplace, in access to employment, vocational training and promotion. In fact, an employer is deemed to have discriminated against a person by neglecting the obligation to suppress sexual harassment.
3.4 Are there any defences to a discrimination claim?
An employer may argue that a discriminatory act is not unlawful by proving that it is reasonably justifiable to advertise or recruit particular classes of people for a particular job, on grounds relating to the nature of the vacancy to be filled or the employment offered or on grounds related to previous work performance and experience. Furthermore, the employer may argue that unlawful discrimination did not take place where a required characteristic constitutes a genuine and determining occupational requirement or where the requirements are established by applicable laws or regulations.
3.5 How do employees enforce their discrimination rights? Can employers settle claims before or after they are initiated?
Employees may enforce their discrimination rights by lodging a complaint before the Industrial Tribunal within four months of the alleged breach. Employers may settle any claim before or after proceedings have been initiated by the employee through a settlement agreement.
3.6 What remedies are available to employees in successful discrimination claims?
If the Industrial Tribunal concludes that the complaint lodged by the employee on grounds of discrimination is justified, then the Industrial Tribunal may take such measures as it may deem fit including the cancellation of any contract of service or of any clause in a contract or in a collective agreement which is discriminatory. The Industrial Tribunal may also order reasonable monetary compensation to the aggrieved party.
3.7 Do “atypical” workers (such as those working part-time, on a fixed-term contract or as a temporary agency worker) have any additional protection?
According to Maltese law, part-time workers or workers on a fixed-term contract may not be treated less favourably than whole-time employees or those employed in virtue of an indefinite contract. All workers shall be entitled to equal rights and benefits.
3.8 Are there any specific rules or requirements in relation to whistleblowing/employees who raise concerns about corporate malpractice?
The EIRA explicitly safeguards whistleblowers or employees who raise concerns about corporate malpractices from termination of employment. In fact, the EIRA states that it shall not constitute a good and sufficient cause of termination when an employee discloses information, whether confidential or otherwise, to a designated public regulating body, regarding alleged illegal or corrupt activities being committed by his employer or by persons acting on the employer’s name and interests.
Furthermore, the Whistleblower Act, Chapter 527 of the Laws of Malta provides for procedures in terms of which employees in both the private sector and the public administration may disclose information regarding improper practices by their employers or other employees in the employ of their employers and to protect employees who make said disclosures from detrimental action.
This article forms part of the ICLG to Employment and Labour Law 2021 publication.
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.
