Whereas the right not to be treated in a discriminatory manner is enshrined in the highest law of the land – the Constitution, measures in favour of protection against discrimination specifically in relation to employment matters may be found both in the Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta), as well as the Equality for Men and Women Act (Chapter 456 of the Laws of Malta).

This subject matter is again high on the national agenda in view of the proposed Equality Act and Human Rights and Equality Commission Act currently being discussed in Parliament, which Acts are intended to “incorporate all legislation dealing with equality in order to ensure legal certainty and elevate the principle of equality to a right in itself, and make it applicable to all spheres of life”[1].

In terms of the Equality Bill, discrimination occurs when a person is discriminated against on the basis of one or a combination of two or more protected characteristics. The said characteristics are defined in the Bill as consisting of “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.”  One will immediately note that the list of such characteristics, though not defined as such in the Constitution and Chapters 452 and 456 of the Laws of Malta, are more extensive and far reaching.  Consequently, following the promulgation of the said Equality Bill, the instances of actions construed as amounting to discriminatory treatment shall increase.

Apart from the addition of gender related characteristics which bring the situation in line with most recent legislative developments on gender identity, one interesting addition to the list of protective characteristics is “health status”.  In previous legislation, the only health characteristic which could result in discriminatory treatment was “disability”. The introduction of “health status” as a protected characteristic appears to significantly widen the instances related to an individual’s health which may give rise to a claim for discrimination.  This may be of particular significance in the context of employment when employers are faced with situations of employees unavailable for protracted periods of time due to sickness.

The Equality Bill itself specifically provides that discrimination may be either (i) direct (that is where a person is treated less favorably than another person is, has been, or would be, treated in a comparable situation, on the basis of any one or a combination of any of the protected characteristics) or (ii) indirect (that is where there is any treatment based on an apparently neutral provision, criterion or practice, which would put persons having any one or a combination of any of the protected characteristics at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary). Furthermore, the Bill provides that harassment, sexual harassment, victimisation, incitement of hatred or violence on the basis of protected characteristics, also amount to forms of discrimination.

Specifically on employment, the Equality Bill provides that discrimination shall include less favourable treatment in the following activities:

REDUNDANCY

Whereas several of the aforementioned activities were already covered in previous legislation, of interest, amongst others, is the inclusion of “conducting of interviews” and “redundancy” as separate activities where discrimination may potentially occur.

In respect of the former, one needs to highlight the new right which is being proposed in favour of the interviewed candidate, that is the right to request from the prospective employer and the right to receive from the said employer (i) adequate information on the selection criteria on the basis of which job applicants will be examined prior to an interview, and (ii) information in writing regarding the criteria upon which an applicant was rejected.  The introduction of such right will certainly require adaptation by several employers ensuring additional care and transparency in the manner they conduct their recruitment process.

The introduction of “redundancy” in the aforementioned list, as separate from “dismissal” may indeed prompt a clear challenge to the criterion of “last in first out” as the basis at law upon which employees being made redundant are selected.  This criterion has already been challenged in the UK as being discriminatory, so much so that, unlike the position in Malta, such criterion no longer constitutes the sole and exclusive criterion to justify redundancy selection in the UK. The UK Courts have in fact been faced with claims of indirect discrimination where the “last in first out” criterion was applied by employers as a means to select the employees to be made redundant. The UK Courts have noted the “last in, first out” criterion for redundancy selection tends to result in indirect sex discrimination against women, because women tend to have shorter employments than men. Furthermore, the Court have held that such criterion may also result in age discrimination, because the young have less opportunity to acquire a longer length of service in their employment when compared to older employees. The UK Courts have concluded that in most cases, it is not advisable for an employer to use “last in, first out” as the only criterion for selection if there are other factors that can be taken into account.  Certainly, these are few of the arguments which our Courts are likely to be required to consider in the near future.

It is the obligation of employers as the entity responsible for the workplace, to take effective measures to ensure that employees do not suffer any form of discrimination at the workplace. It is also the duty of the employer to inform its employees about what constitutes discriminatory treatment and explain any measures taken by the employer in furtherance of its obligations in terms of law. Employers are also duty bound to adopt preventive measures, which should be fully implemented and monitored effectively, and where discrimination does take place, it is the responsibility of the employer to ensure that remedial measures are in place.

EQUALITY DUTY

The proposed Equality Bill, introduces what is termed as an “Equality Duty” upon all stakeholders falling within the scope of application of proposed law, including employers. The said duty consists of  (a) the duty to take the necessary measures to ensure that the principle of equal treatment is respected; (b) the duty to ensure that any contractual provisions, internal rules which are contrary to the principle of equal treatment are abolished or amended; (c) the duty make those adjustments or alterations not imposing a disproportionate or unjustifiable burden where needed to ensure the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; (d) the duty to implement policies, rules, or guidelines about equality, equal treatment and non-discrimination as may be necessary.

Where discrimination does take place at the workplace, the only defense available to the employer is to prove that it took such necessary steps to prevent such discrimination. Conversely, failure on the part of the employer to suppress any form of discrimination shall itself be deemed to constitute discrimination.

It is therefore essential that employers devise and implement policies against discrimination and frequently train its employees, irrespective of grade or class, as a wholistic and preventive approach against discrimination at the workplace. Such obligation already exists under the existing legislative framework. However, the extent of potential penalties under the new proposed Bills, the constitution of a new commission tasked with clamping down discriminatory practices, and an increased awareness in the rights and obligations in this field, should certainly serve as an incentive for all employers to step-up initiatives as a matter of priority.

Although as stated earlier the intention of the Bills currently being discussed in Parliament are intended to incorporate all legislation relative to equality, and whereas the Equality Bill specifically provides that upon the promulgation thereof, Chapter 456 shall be repealed, it is unclear whether the provisions protecting against discrimination in employment found in Chapter 452 shall also be repealed, as no reference thereto is made in the consequential amendments included in the said Bill. This is being said because the protections afforded in Chapter 452 are indeed also provided in the new proposed Bill, including the right to receive the same rate of pay for work of equal value. The achievement of the objective of legal certainty may be somewhat hindered should the provisions found in Chapter 452 be retained following the promulgation of the new Bills also because whereas the complaints for discriminatory treatment shall be dealt with under the proposed Bills before the Civil Court, First Hall and/or the Human Rights and Equality Commission, which is to be set-up pursuant to said Bills, in the case of breaches of the relative provisions found in Chapter 452, reference is to be made to the Industrial Tribunal. This may thus result in conflicting judgements and overlapping jurisdictions.

More information as to the procedural aspects dealing with complaints involving discriminatory treatment as well as available remedies, will be dealt with in a separated article, which can also be found in upcoming editions of our Employment Newsletter.

Should you have any queries in relation to the above, kindly contact us on [email protected].

[1] Objects and Reasons – Equality Bill