Equal Treatment in Employment Regulations, 2004

L.N. 461 of 2004

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT, 2002

(ACT NO. XXII OF 2002)

Equal Treatment in Employment Regulations, 2004

IN exercise of the powers conferred by articles 31 and 48(2) of the

Employment and Industrial Relations Act, 2002, the Minister of

Education, Youth and Employment has made the following regulations:-

(1) The title of these regulations is the Equal Treatment in Title and Scope

Employment Regulations, 2004.

(2) These regulations give effect to the relevant provisions

of Council Directive 2000/78/EC and 2000/43/EC.

(3) The purpose of these regulations is to put into effect the

principle of equal treatment in relation to employment by laying down

minimum requirements to combat discriminatory treatment on the

grounds of religion or religious belief, disability, age, sexual orientation,

and racial or ethnic origin.

(4) These regulations shall be applicable to all persons in

relation to: -

(a) conditions for access to employment, including the

advertising of opportunities for employment, selection criteria

and recruitment conditions, whatever the branch of activity

and at all levels of the professional hierarchy, including

promotions;

(b) access to all types and to all levels of vocational

guidance, vocational training, advanced vocational training

and retraining, including practical work experience;

(c) employment and conditions of employment,

including remuneration and dismissals;

(d) membership of, and involvement in, any

organization of employees and employers, or any organization

whose members carry on a particular profession, including

the benefits provided for by such organizations.

(5) These regulations shall not apply to

(a) any differences of treatment based on nationality

and are without prejudice to laws and conditions relating to

the entry into and residence of third country nationals and

stateless persons in Malta and to any treatment which arises

from the legal status of these individuals concerned;

(b) the armed forces of Malta in so far as discriminatory

treatment on the grounds of disability and age is concerned.

(6) These regulations shall be without prejudice to

(a) any law necessary for public security, for

maintaining public order, for the prevention of criminal

offences, for the protection of health and for the protection of

the rights and freedoms of others;

(b) the introduction and implementation of provisions

in collective agreements or any other agreement entered into

between employers and employees, which lay down anti-

discrimination rules in the areas referred to in sub-regulation

(3) of this regulation which respect the minimum requirements

in these regulations.

(1) For the purposes of these regulations: -

‘the Act’ means the Employment and Industrial Relations Act,

2002;

‘benefit’ includes facilities and services;

‘disability’ shall have the same meaning as assigned to it by

article 2 of the Equal Opportunities (Persons with Disabilities) Act,

2000;

‘discriminatory treatment’ means any distinction, exclusion,

restriction or difference in treatment, whether direct or indirect,

on any of the grounds mentioned in regulation 1(3) which is not

justifiable in a democratic society and includes harassment;

‘employment’ means employment under a contract of service

and includes an apprentice as defined by article 29 of the

Employment and Training Services Act as well as the process of

recruitment or training of any person with a view to engagement

in employment, and in regard to a person already in employment,

includes also a promotion to a higher grade or engagement in a

different class of employment or appointment to an office or post;

‘employment agency’ means a person who, or an association

of persons that, whether for profit or otherwise, provides services

related to the purpose of finding employment for workers or for

supplying workers to employers, and includes guidance on careers

and other services related to employment but excludes educational

establishments;

‘principle of equal treatment’ shall mean the absence of direct

or indirect discriminatory treatment on any of the grounds referred

to in regulation 1(3).

(2) Subject to the provisions of sub regulation 1 of this

regulation, terms and expressions used in these regulations shall, unless

the context requires otherwise, have the meaning assigned to them by

(1) It shall be unlawful for a person to subject another person Concept of

to discriminatory treatment, whether directly or indirectly, on the grounds discriminatory

treatment.

of a particular religion or religious belief, disability, age, sexual

orientation, or racial or ethnic origin in any situation referred to in

regulation 1(4).

(2) For the purpose of these regulations

(a) direct discriminatory treatment shall be taken to

occur where one person is treated less favourably than another

is, has been, or would be, treated in a comparable situation

on any of the grounds referred to in sub-regulation (1) of this

regulation;

(b) indirect discriminatory treatment shall be taken to

occur where an apparently neutral provision, criterion or

practice would put persons of a particular race or ethnic origin

or having a particular religion or religious belief, disability,

age, or sexual orientation at a disadvantage when compared

with other persons unless: -

(i) that provision, criterion or practice is

objectively justified by a legitimate aim and the means

of achieving that aim are appropriate and necessary; or

(ii) with regards to persons with a particular

disability, the employer or any person or organization to

whom these regulations apply, is obliged, under any law,

to take appropriate measures in line with the principles

contained in regulation 6 so as to eliminate disadvantages

entailed by such provision, criterion or practice.

(3) No person shall harass another person by subjecting him

to unwanted conduct or requests relating to any of the grounds referred

to in sub-regulation(1) of this regulation, when such conduct or request

takes place with the purpose, or which has the effect of

(a) violating the dignity of the person who is so

subjected, or

(b) creating an intimidating, hostile, degrading,

humiliating or offensive environment for the person who is

so subjected;

and for the purposes of these regulations, harassment shall be

deemed to be a form of discriminatory treatment.

(4) For the purposes of these regulations, employers or any

persons or organisation to whom these regulations apply shall also be

deemed to have discriminated against a person if they

(a)

instruct any person to discriminate against another

person;

(b) neglect their obligation to suppress any form of

harassment at their workplace or within their organisation, as

the case may be.

(1) Notwithstanding regulation 3(1) and 3(2), any difference

of treatment based on a characteristic related to any of the grounds

mentioned in regulation 1(3) shall not constitute discriminatory treatment

where by reason of the nature of the particular occupational activities

concerned, or of the context in which they are carried out, such a

characteristic constitutes a genuine and determining occupational

requirement provided that the objective is legitimate and the requirement

is proportionate.

(2) When an employer has an ethos based on religion or

religious belief, and having regard to that ethos, the nature of the

employment or the context in which it is carried out constitute a

sufficiently genuine and legitimate justification for the employer to

require that such work is carried out by a person with a particular religion

or religious belief, any difference of treatment based on a person’s

religion or religious belief shall not constitute discriminatory treatment,

provided that it is proportionate to apply that requirement in that

particular case.

(3) Employers whose ethos is based on religion or religious

belief, shall have the right to require individuals working for them to

act in good faith and with loyalty to the organisation’s ethos, provided

that the provisions in these regulations are complied with.

(1) Notwithstanding regulation 3(1) and (2), difference of Difference

treatment on

treatment on the ground of age shall not constitute discriminatory grounds of age.

treatment if: -

(a) such differences are objectively and reasonably

justified by a legitimate aim, including a legitimate

employment policy, labour market and vocational training

objectives; and

(b) if the means of achieving that aim are appropriate

and necessary.

(2) Non-discriminatory differences of treatment referred

to in sub-regulation (1) of this regulation may include: -

(a) the setting of special conditions on access to

employment and vocational training, including dismissal and

remuneration conditions, for young people, older workers and

persons with caring responsibilities in order to promote their

vocational integration or ensure their protection;

(b) the fixing of minimum conditions of age,

professional experience or seniority in service for access to

employment or to certain advantages linked to employment;

(c) the fixing of a maximum age for recruitment which is

based on the training requirements of the post in question or the

need for a reasonable period of employment before retirement.

(1) Nothing in these regulations shall render unlawful any Positive action.

act done in or in connection with

(a) affording persons of a particular religion or religious

belief, disability, age, sexual orientation, or racial or ethnic

origin, access to benefits relating to training which would

help prepare them for a particular work; or

(b) encouraging such persons referred to in sub-

regulation (1) (a) of this regulation to take advantage of

opportunities for doing a particular work,

where it reasonably appears to the person doing the act

that it prevents or compensates for disadvantages linked to

any of the grounds referred to in regulation 1(3).

(2) With regards to disabled persons, the principle of equal

treatment shall be without prejudice to measures taken at the workplace

aimed at creating or maintaining provisions or facilities for safeguarding

or promoting their integration into the working environment.

Without prejudice to any relevant provisions of the Act, it shall

be unlawful for a registered organization under the Act, or for the

governing body or any officer or official representative of such

organization

(a)

to subject a person to discriminatory treatment

(i) by refusing or failing to accept an application for

membership, or

(ii) in the terms or conditions on which such

organization is prepared to accept applications for

membership;

(b) to subject a member to discriminatory treatment

(i) by denying access to any benefit provided by the

organization or limiting access to such benefit, or

(ii) by depriving membership of the organization or

varying the terms of such membership, or

(iii)

by subjecting him to any other detriment.

(1) It shall be unlawful for an employment agency to subject

a person to discriminatory treatment:-

(a)

by refusing to provide any of its services; or

(b) in the terms or conditions it offers to provide any

of its services; or

(c) in the manner in which it provides any of its

services.

(2) For the purposes of this regulation, an employment

agency shall not be deemed to effect discriminatory treatment against a

person if, taking into account training, qualifications and experience

relevant to the work sought, and all other relevant factors that it finds

reasonable to take into account, such person would be unable to carry

out the inherent requirements of the work sought.

(1) Where an allegation is made that some form of

discriminatory treatment has occurred, the person making the allegation,

or the Director, if either deems fit, shall have the right to send a written

notification to the employer or any person or organisation to whom

these regulations apply, hereafter referred to as the respondent, of the

alleged discriminatory treatment received, giving any relevant details

and requesting a reply. On receipt of such notification, the respondent

shall submit a written reply within ten working days of the date of receipt

of such notification, giving the respondent’s version of events and any

grounds for disputing the allegations, as well an explanation of any

relevant procedures adopted by the respondent to prevent discriminatory

treatment.

(2) Any correspondence referred to in sub-regulation (1) of

this regulation shall be admissible in proceedings brought before the

Industrial Tribunal or other Court, and if it appears to the Tribunal or Court

that the respondent deliberately, and without reasonable excuse, omitted to

reply within ten working days of the date of receipt of such notification or

that his reply was evasive or equivocal, the Tribunal or Court may draw

any inference from that fact that it considers just and equitable to draw,

including an inference that he committed an unlawful act.

(3) The provisions in sub-regulation (1) of this regulation

requiring the respondent to submit a reply shall not apply if, on the date

that the request was made, proceedings had already been initiated on

the matter in front of the Industrial Tribunal or other Court.

(1) A person claiming to have been subjected to Industrial Tribunal

discriminatory treatment in relation to his employment in terms of these and

other civil

regulations may, within four months of the alleged breach, refer the proceedings

matter to the Industrial Tribunal for redress, as provided for by article

30 of the Act.

(2) Without prejudice to sub-regulation (1) of this regulation,

a person who alleges that any other person has committed in his or her

regard any unlawful act under these regulations shall, within four months

of the alleged breach, have a right of action before the competent Court

of civil jurisdiction requesting the Court to order the defendant to desist

from such unlawful act and, where applicable, to order the payment of

compensation for such damage suffered through such unlawful act.

(3) In any proceedings mentioned in sub-regulations (1) and

(2) of this regulation, it shall be sufficient for the plaintiff to prove that

he or she has suffered discriminatory treatment and it shall become

incumbent on the defendant to prove that such treatment was justified

in accordance with these regulations, in the absence of which, the

Tribunal or Court shall uphold the complaint of the plaintiff.

Nothing shall prevent any association, organization or other Defence of rights.

legal entity, having a legitimate interest in ensuring that these regulations

are complied with, to engage itself either on behalf or in support of the

complainant, with his or her approval, in any judicial or administrative

procedure provided for the enforcement of obligations under these

regulations.

It shall be the duty of the employer or any person or

organisation to whom these regulations apply, to use appropriate means

to bring the provisions of these regulations as well as of any measure

taken to further the aim of these regulations to the attention of his

employees, or of the organisation’s members, as the case may be, or to

any other persons who may be affected by the actions of the employer

or the organisation concerned.

Any provisions contrary to the principle of equal treatment

in individual or collective contracts or agreements, internal rules of

undertakings, or rules governing any registered organisation in terms

of the Act, shall, on entry into force of these regulations, be considered

null and void.

Any person contravening the provisions of these regulations

shall be guilty of an offence and shall, on conviction, be liable to a fine

(multa) not exceeding one thousand liri (Lm 1000) or to imprisonment

for a period not exceeding six months, or to both such fine and

imprisonment.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press