EQUALITY FOR MEN AND WOMEN ACT

EQUALITY FOR MEN AND WOMEN

CHAPTER 456

EQUALITY FOR MEN AND WOMEN ACT

To promote equality for men and women.

9th December, 2003

ACT I of 2003 , as amended by Legal Notice 427 of 2007 ; and Acts

IV of 2009 , IX of 2012 , XVIII of 2014 , and VII and XI of 2015.

The short title of this Act is the Equality for Men and

Women Act.

(1)

In this Act, unless the context otherwise requires

"Commissioner" means the Commissioner for the promotion of

equality appointed under article 11, and Commission means the

Commission established under the said article;

"discrimination" means discrimination based on sex or because

of family responsibilities, sexual orientation, age, religion or

belief, racial or ethnic origin, or gender identity, gender expression

or sex characteristics and includes the treatment of a person in a

less favourable manner than another person is, has been or would

be treated on these grounds and "discriminate" shall be construed

accordingly;

"employment" means any gainful activity including self-

employment and includes promotion and transfer to another post,

as well as access to vocational or professional training, the duration

of the employment or its extension or termination;

"Minister" means the Minister responsible for equality;

''self-employed workers" in line with Directive 2010/41EU of

the European Parliament and the Council of 7 July 2010 on the

application of the principle of equal treatment between men and

women engaged in an activity in a self-employed capacity, means

all persons pursuing a gainful activity for their own account, and

the spouses of self-employed workers not being employees or

business partners, where they habitually participate in the activities

of the self-employed worker and perform the same tasks or

ancillary tasks;

"sexual harassment" means the unlawful activities listed in

article 9(1);

"vocational training" includes all forms of vocational training

and retraining.

(2) For the purposes of this Act, and unless the context

otherwise requires, the terms "man" and "woman" include males

and females irrespective of their age.

(3) For the purposes of subarticle (1) discrimination based on

sex or because of family responsibilities or sexual orientation, age,

religion or belief, racial or ethnic origin, or gender identity, gender

expression or sex characteristics is

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(a) the giving of less favourable treatment, directly or

indirectly, to men and women on the basis of their sex

or because of family responsibilities or because of

their sexual orientation, age, religion or belief, racial

or ethnic origin, or gender identity, gender expression

or sex characteristics;

(b) treating a woman less favourably for reasons of actual

or potential pregnancy or childbirth;

(c) treating men and women less favourably on the basis

of parenthood, family responsibility or for some other

reason related to sex and, or sexual orientation, age,

religion or belief, racial or ethnic origin, or gender

identity, gender expression or sex characteristics;

(d) any treatment based on a provision, criterion or

practice which would put persons at a particular

disadvantage compared with persons of the other sex

or of the same sex or sexual orientation, age, religion

or belief, racial or ethnic origin, or gender identity,

gender expression or sex characteristics unless that

provision, criterion or practice is appropriate and

necessary and can be justified by objective factors

unrelated to sex.

(4) Nothing in subarticle (2) shall be deemed to constitute

discrimination in so far as such treatment -

(a) is given to grant special protection to women during

childbirth or pregnancy;

(b) constitutes measures of positive action for the purpose

of achieving substantive equality for men and women.

(4A) Indirect discrimination may be proved by any means of

evidence including statistical evidence.

(5) 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

Provided that the burden of proof shall lie on the person

who alleges that there is a genuine occupational requirement.

Nothing in this Act shall be construed as affecting any rule

relating to religious practice, access to priesthood or membership in

any religious order or other religious communities.

(1) It shall be unlawful for employers to discriminate,

directly or indirectly, against a person 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.

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(2) Without prejudice to the provisions of article 26 of the

Employment and Industrial Relations Act, employers shall also be

deemed to have discriminated against a person if such employers -

(a) manage the work, give promotions, distribute tasks,

offer training opportunities or otherwise arrange the

working conditions in a manner that employees are

assigned a less favourable status than others on the

basis of sex or because of family responsibilities; or

(b) alter the working conditions, or the terms of

employment of employees to the detriment of such

employees after such employees have invoked any

right accorded to him under this Act or claimed the

performance in his favour of any obligation or duty

under this Act; or

(c) neglect their obligation to suppress sexual harassment

as provided under article 9(2).

(1) It shall be the duty of employers upon the request of

any person claiming to have been sexually harassed or

discriminated against, or upon a request made by the Commissioner

acting upon a complaint or otherwise, to provide such person or the

Commissioner, as the case may be, within ten working days of such

a request with a report on the allegation made or the procedures

used by the employers in the matter alleged to constitute such

sexual harassment or discrimination.

(2) The employers shall be entitled to claim from the person

requesting the report, reimbursement of such reasonable expenses

incurred in drawing up and making the report

Provided that such expenses may be recovered from the

person responsible for such sexual harassment or discrimination if

it is found that such sexual harassment or discrimination did in fact

take place.

(1) No bank or financial institution or insurance company

shall discriminate against any person in the grant of any facility in

respect of the establishment, equipment or in the launching or

extension of any business or the launching or extension of any form

of self employment or the insurance of that business or the person

in self employment.

(2) Nothing in subarticle (1) shall be deemed to constitute

discrimination in so far as the conditions under which the facility or

t h e i n s u r a n c e c o v e r i s o ff e r e d o r w i t h h e l d r e f l e c t g e n u i n e

considerations based on the financial risk in the grant of such

facilities or of such insurance cover.

(1) Spouses of self employed workers not being employees

or partners, who participate in the activities of the self employed

workers and perform the same or ancillary tasks as their spouse

shall be entitled to receive from their spouse a fair compensation

for their activity commensurate to the value of their contribution.

(2) The provisions of subarticle (1) shall not apply where the

system of community of acquests or community of the residue

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under separate administration subsists between the spouses.

(1) It shall be unlawful for any educational establishment

or for any other entity providing vocational training or guidance to

discriminate against any person in -

(a) the access to any course, vocational training or

guidance; or

(b) the award of educational support for students or

trainees; or

(c) in the selection and implementation of the curricula; or

(d) in the assessment of the skills or knowledge of the

students or trainees.

(2) Failure by the persons responsible for such establishments

and entities to fulfil their obligation to suppress sexual harassment

as provided under article 9(2) shall for the purposes of subarticle

(1) of this article constitute discrimination.

(3) It shall be the duty of educational establishments and

entities providing vocational training, within the limits of their

competence to ensure that curricula and textbooks do not propagate

discrimination.

(1) Without prejudice to the provisions of article 29 of the

Employment and Industrial Relations Act, it shall be unlawful for

any person to sexually harass other persons, that is to say

(a) to subject other persons to an act of physical intimacy;

or

(b) to request sexual favours from other persons; or

(c) to subject other persons to any act or conduct with

sexual connotations, including spoken words, gestures

or the production, display or circulation of any written

words, pictures or other material, where the act, words

or conduct is unwelcome to the persons to whom they

are directed and could reasonably be regarded as

offensive, humiliating or intimidating to the persons to

whom they are directed; or

(d) the persons so subjected or requested are treated less

favourably by reason of such persons’ rejection of or

submission to such subjection or request, it could

reasonably be anticipated that such persons would be

so treated.

(2)

(a) Persons responsible for any work place, educational

establishment or entity providing vocational training or

guidance or for any establishment at which goods,

services or accommodation facilities are offered to the

public, shall not permit other persons who have a right

to be present in, or to avail themselves of any facility,

goods or service provided at that place, to suffer sexual

harassment at that place.

(b) It shall be a defence for persons responsible as

aforesaid to prove that they took such steps as are

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reasonably practicable to prevent such sexual

harassment.

(3) Persons who sexually harass other persons shall be guilty of

an offence against this article and shall, without prejudice to any

greater liability under any other law, be liable on conviction to a

fine (multa) of not more than two thousand and three hundred and

twenty-nine euro and thirty-seven cents (2,329.37) or to

imprisonment of not more than six months or to both such fine and

imprisonment.

(1) Without prejudice to the provisions of article 26 of the

Employment and Industrial Relations Act, 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

Provided that the provisions of this subarticle shall not

apply in such cases where employers prove that the work in

connection with the situation advertised can only be performed by a

person of a specific sex.

(2) It shall not be lawful for persons to publish or display or

cause to be published or displayed any advertisement which

promotes discrimination or which otherwise discriminate.

(3) Persons who act in breach of subarticle (1) or (2) shall be

guilty of an offence against this article and shall, on conviction, be

liable to the penalties established for contraventions.

(4) For the purposes of subarticle (1), advertising includes

disseminating information about the vacancy by word of mouth

from person to person.

(1) The Prime Minister shall upon the advice of the

Minister appoint a Commission to be called the National

Commission for the Promotion of Equality for Men and Women

(hereinafter referred to as "the Commission") composed of a

chairperson who shall be called the Commissioner for the

Promotion of Equality (hereinafter referred to as "the

Commissioner") and seven other members, at least three of whom

shall be women; and one of the said seven members shall be a

person with disability.

(2) All the members of the Commission shall be appointed by

the Prime Minister from among such persons appearing to him to

be best suited to deal with issues of equality for men and women,

and, or, administrative issues connected therewith.

(3) Every member of the Commission shall hold office for a

term of two years and may be re-appointed at the end of their term

of office.

(4) The Prime Minister may terminate the appointment of

members of the Commission if he is satisfied that

(a) without the consent of the Commission the members

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failed to attend the meetings of the Commission during

a continuous period of six months;

(b) the members are undischarged bankrupt persons, or

have made an arrangement with their creditors, or are

insolvent or have been found guilty of any voluntary

crime against the person; or

(c) the members are incapable of carrying out their duties.

(5) The quorum of the Commission shall be of four members,

one of whom shall be the Commissioner.

(6) The validity of any proceedings of the Commission shall

not be affected by any vacancy among the members of the

Commission or by any defect in the appointment of any member.

(7) Decisions of the Commission shall be taken by the majority

of the votes of the members present. The Commissioner shall also

have a casting vote.

(8) Subject to the provisions of this Act and of any regulation

made thereunder, the Commission may appoint sub-committees

and, in general, shall regulate its own proceedings.

(1) The Commissioner, with the assistance of the

Commission, shall have the following functions, that is to say

(a) to identify, establish and update all policies directly or

indirectly related to issues of equality for men and

women;

(b) to identify the needs of persons who are disadvantaged

by reasons of their sex and to take such steps within its

power and to propose appropriate measures in order to

cater for such needs in the widest manner possible;

(c) to monitor the implementation of national policies

with respect to the promotion of equality for men and

women;

(d) to liaise between, and ensure the necessary co-

ordination between, government departments and

other agencies in the implementation of measures,

services or initiatives proposed by Government or the

Commission from time to time;

(e) to keep direct and continuous contact with local and

foreign bodies working in the field of equality issues,

and with other groups, agencies or individuals as the

need arises;

(f) to work towards the elimination of discrimination

between men and women;

(g) to carry out general and independent investigations

with a view to determine whether the provisions of this

Act are being complied with;

(h) to independently investigate complaints of a more

particular or individual character to determine whether

the provisions of this Act are being contravened with

respect to the complainant and, where deemed

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appropriate, to mediate with regard to such

complaints;

(i) to inquire into and advise or make determinations in an

independent manner on any matter relating to equality

between men and women as may be referred to it by

the Minister;

(j) to provide independent assistance, where and as

appropriate, to persons suffering from discrimination

in enforcing their rights under this Act;

(k) to keep under review the working of this Act, and

where deemed required, at the request of the Minister

or otherwise, submit proposals for its amendment or

substitution;

(l) to perform such other function as may be assigned by

this or any other Act or such other functions as may be

assigned by the Minister.

(2) On the appointment by the Prime Minister of the first

members, the Commission shall have a legal personality separate

from that of the Government and its judicial representation shall

vest in the Commissioner

Provided that the Commission may appoint any one or more

of its members or any other person, to appear in its name and on its

behalf in any judicial proceedings, and on any act, contract,

agreement or document whatsoever.

(1) The Commission shall be administered by an

Executive Director who shall act in accordance with such policies

established by the Commission and such instructions as may be

given to him by the Commissioner.

(2) The Executive Director shall hold office under such terms

and conditions as the Commissioner, with the concurrence of the

Minister, may establish. Where the Executive Director is a public

officer seconded from the Government, such person shall have the

right on the termination of the secondment to revert to the former

post without loss of rank or seniority.

(3) The Commission may, after consultations with the Minister

and subject to the approval of such Minister as to their number,

remuneration and terms and conditions of service, appoint such

officers as it deems fit.

(4) The Prime Minister may, at the request of the Commission,

from time to time direct that any public officers shall be detailed

for duty with the Commission in such capacity and with effect from

such date as may be specified in the direction.

(5) The period during which a direction as aforesaid shall apply

to any officers specified therein, shall unless the officers retire

from the public service, or otherwise cease to be public officers at

an earlier date, and on the date specified in the direction or on the

happening of any of the following events, that is to say -

(a) the acceptance by such public officers of an offer of

permanent employment with the Commission; or

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(b) the revocation by the Prime Minister of any direction

made by him under this article in relation to such

officers.

(6) Where a public officer is detailed for duty with the

Commission under this article, such officer shall, during the time

the direction has effect in relation to him, be under the

administrative authority and control of the Commission, but shall

for all other intents and purposes remain and be considered and

treated as a public officer and without prejudice to the generality of

the aforesaid such public officer

(a) shall not during the time while he was so detailed -\

(i) be precluded from applying for transfer to a

department of the Government in accordance

with the terms and conditions of service attached

to the appointment under the Government held

by the officer at the date on which such officer

was detailed for duty; or

(ii) be so employed that his remuneration and

conditions of service are less favourable than

those which are attached to the appointment

under the Government held by such officer at the

date the officer was so detailed or which would

have become attached during the said period had

such officer not been so detailed; and

(b) shall be entitled to have the service with the

Commission considered as service with the

Government for the purpose of any pension, gratuity

or benefit under the Pensions Ordinance and the

Widows and Orphans’ Pension Act; and

(c) any application made under paragraph (a)(i) shall be

given the same consideration as if the applicant had

not been so detailed.

(7) The Commission shall pay to the Government such

contributions as may from time to time be determined by the

Minister responsible for finance in respect of the cost of pensions

and gratuities earned by an officer detailed for duty with the

Commission during the period in which the officer was so detailed.

(1) The Commission shall be funded out of funds

allocated to it by the Minister out of funds voted by Parliament for

activities under the Ministry or out of funds that may be donated or

allocated to it from other sources in Malta or abroad.

(2) At least two months prior to the end of its financial year the

C o m m i s s i o n s h a l l s u b m i t t o t h e M i n i s t e r, a b u s i n e s s p l a n

(including a financial plan) covering the proposed activities of the

Commission during the following financial year. When approved

by the Minister and by the Minister responsible for finance, such

business plan, shall be the approved budget of the Commission.

(3) The Commission shall keep proper accounts of its income

and expenditure and shall prepare and send to the Minister

statements of accounts in relation to each of its financial years.

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(4) The accounts of the Commission shall be audited by an

auditor or auditors appointed by it with the approval of the

Minister

Provided that the Minister responsible for finance may

require the books and records of the Commission to be audited or

examined by the Auditor General who for the purpose shall have

power to carry out such physical checking or other verifications,

and may demand and acquire such information, as may be

necessary.

(5) The financial year of the Commission shall commence on

the 1st January and shall end on the 31st December of each year

Provided that the first financial year of the Commission

shall begin on the coming into force of this Act and end on the 31st

December of the next following year.

(1) As soon as practicable after the end of every calendar

year, but in any case not later than the 31st day of March of the

following year, the Commission may submit to the Minister a

report of its activities during the year (such report hereinafter in

this section referred to as an "annual report").

(2) Each annual report shall include a general report of

developments during the period to which it relates in respect of

matters falling within the functions of the Commission and shall

also include a report on the activities, initiatives, investigations and

initiatives undertaken to suppress discrimination and to promote

equality for men and women.

(3) The Minister shall, as soon as practicable but in any case

not later than two months after its submission to him by the

Commission, cause a copy of the annual report together with a copy

of the then current business and financial plan of the Commission

to be laid on the Table of the House.

The Commission shall be exempt from any liability to pay

tax, in respect of its income, under the Income Tax Act.

(1) The Commissioner may initiate investigations on any

matter involving an act or omission that is allegedly unlawful under

the provisions of this Act.

(2) The Commissioner may also initiate investigations on the

receipt of a complaint in writing by persons who claim to be the

victims of an act or omission contrary to the provisions of this Act.

(3) If it appears to the Commissioner that persons who wish to

make a complaint under subarticle (2) require assistance to

formulate the complaint, the Commissioner shall take or order the

taking of such reasonable steps as may be necessary to assist such

persons in making the complaint.

(1) After carrying out an investigation the Commissioner

may -

(a) dismiss the complaint, or

(b) find that the complaint is proved and thereupon, shall

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(i)

where the action complained of constitutes an

offence, make a report to the Commissioner of

Police for action on his part; or

(ii) where the action complained of does not

constitute an offence, call upon the person

against whom the complaint is directed to

redress the situation, and mediate between the

complainant and such person to settle the matter.

(2) The findings of the Commissioner under subarticle (1) shall

not be binding on the complainant and the person against whom the

complaint is directed unless they expressly declare in writing to be

so bound.

(3) In respect of general investigations or of investigations

upon complaints by the Commissioner, the Minister may prescribe

(a) the procedure whereby the Commissioner may require

any person to furnish such information as may be

necessary for the investigation, as well as the time

within which and the manner in which such

information is to be furnished;

(b) the procedures to be followed where a person fails to

supply such information, the circumstances in which

following an investigation as aforesaid, the

Commission may itself take legal action.

(4) Regulations under subarticle (3) may provide, in the case of

an alleged discrimination by one person against another, the

arrangements whereby the Commission may itself refer the matter

to the competent civil court or to the Industrial Tribunal for redress

Provided that nothing in this subarticle shall prevent any

person having a legal interest from himself taking action for redress

or where action has been taken by the Commission, from joining in

and becoming a party to the suit.

(5) The Commissioner and every other member of the

Commission or any member of the staff of the Commission shall

treat any matter coming to their knowledge in the course of an

investigation as confidential and shall not disclose the same unless

such disclosure is necessary in the course of a prosecution or an

action for redress under this Act.

(1) Without prejudice to the provisions of article 30 of the

Employment and Industrial Relations Act, a person who alleges

that any other person has committed in his or her regard any act

which under any of the provisions of this Act is unlawful, shall

have a right of action before the competent court of civil

jurisdiction requesting the court to order the defendant to desist

from such unlawful acts and, where applicable, to order the

payment of compensation for such damage suffered through such

unlawful act.

(2) In any proceedings under sub-article (1) and in any

proceedings concerning the application of the principle of equal

treatment before a competent authority not being a Court referred

to in sub-article (1), it shall be sufficient for the plaintiff or the

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person instituting the said proceedings to establish, before the

Court or before such other competent authority, facts from which it

may be presumed that he or she has been treated less favourably,

directly or indirectly, on the basis of sex or because of family

responsibilities, and it shall be incumbent on the defendant or on

the person against whom such proceedings are brought 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 Act, and the Court or other competent

authority shall uphold the complaint if the defendant or the person

against whom the proceedings before the competent authority are

brought fails to prove that he did not commit an illegal act.

The Minister may make regulations generally for giving

effect to the provisions of this Act, and the enforcement thereof,

and in particular, but without prejudice to the generality of the

foregoing

(a) for providing for any matter which is required or

authorised by the Act to be prescribed; and

(b) for providing for any matter relating to equality

between men and women; and

(c) for the exemption of any person, or class of persons or

body, from the requirements of article 4(1) in so far as

it relates to article 4(1)(a) and (b), article 5 and article

10 as may be specified in the aforesaid regulations;

provided that any such exemption shall only be

prescribed by the Minister after consultation with the

Commission and provided that such exemption shall

be for a specified period of time which can be renewed

by the Minister after consultation with the

Commission.