Discrimination - CSB Advocates' contribution to the ICLG to Employment & Labour Law 2013 Edition
Are employees protected against discrimination? If so, on what grounds is discrimination prohibited?
The EIRA specifically prohibits discrimination in relation to employment.
Discriminatory treatment means 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.
What types of discrimination are unlawful and in what circumstances?
Maltese law emphasises the concept of equal work for equal value by ensuring that at the workplace persons engaged in the same kind of work are remunerated in the same way, despite difference in age or sex. Employers must therefore abide by the provisions governing discrimination legislation and ensure that the selection and recruitment procedures, whether such procedures relate to the processing of employment applications, advertising, interviewing, short-listing, selecting or rejecting, observe the principle of equal opportunities. Discriminatory treatment also includes the engaging or selection of a person who is less qualified than a person of the opposite sex and therefore applicants must be fairly selected on merit and suitability for the job in question.
Moreover an employer, may not subject any of his employees or any class of employees to discriminatory treatment, in regard to conditions of employment, terms of payment or dismissal.
Are there any defences to a discrimination claim?
In cases where an employee alleges discrimination, the onus of proof is shifted and the employer must prove that there was in fact no discrimination.
An employer must prove that the action was based on acceptable grounds related to the nature of the work or on grounds related to previous work performance and experience. Moreover discriminatory treatment shall not apply to any preference or exclusion where a required characteristic constitutes a genuine and determining occupational requirement or where the requirements are established by any applicable laws or regulations.
How do employees enforce their discrimination rights? Can employers settle claims before or after they are initiated?
Employees may bring an action for discrimination before the Industrial Tribunal within four months of the alleged breach. Such claims may be settled out of the Tribunal before or after that the action has been initiated, as the employee may withdraw the claim at any stage.
What remedies are available to employees in successful discrimination claims?
If the Industrial Tribunal is satisfied that the complaint is justified, it 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 and shall order the payment of compensation for loss and damage sustained by the aggrieved party as a consequence of the breach.
Do “atypical” workers (such as those working part-time, on a fixed-term contract or as a temporary agency worker) have any additional protection?
All employees have the same protection in terms of law as a safeguard from discrimination. Atypical employees do not have additional protection.