Equal Treatment of Persons Order, 2007

L.N. 85 of 2007

EUROPEAN UNION ACT

(CAP. 460)

Equal Treatment of Persons Order, 2007

IN exercise of the powers conferred by sub-article (2) of article 4

of the European Union Act, the Prime Minister has made the following

Order>-

The title of this Order is the Equal Treatment of Persons Order,

2007. (1) In this Order, unless the context otherwise requires>

“advertisement” means any form of advertisement, whether

to the public or not and whether in a newspaper, magazine or other

publication, on television or radio or on the internet or by display

of a notice, poster, billboard, trailer or flyer or by any other means,

and references to the publishing or display of advertisements shall

be construed accordingly<

“Equality Commission” means the National Commission for

the Promotion of Equality for Men and Women set up under article

11 of the Equality for Men and Women Act, and “the

Commissioner” shall have the same meaning assigned to it by

article 2 of the same Act<

“discrimination” means direct or indirect discrimination

based on racial or ethnic origin and “discriminate” and

“discriminatory” shall be construed accordingly<

“harassment” of a person means to subject the person to any

unwelcome act, request or conduct, including spoken words,

gestures or the production, display or circulation of written words,

pictures or other material and “to harass” a person shall be construed

accordingly<

“the Minister” means the minister responsible for equality<

“the Directive” means the Council Directive 2000#43#EC of

29 June 2000 implementing the principle of equal treatment

between persons irrespective of racial or ethnic origin<

“the relevant Act” means the Equality for Men and Women

Act.

(2) For the purposes of these regulations, but saving the

provisions of sub-article (3) of this article>

(a) direct discrimination shall be taken to occur where a

person is treated less favourably than another person is, has been,

or would be, treated in a comparable situation<

(b) indirect discrimination shall be taken to occur where

an apparently neutral provision, criterion or practice would put a

person 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<

(c) harassment shall be deemed to be discrimination when

it is related racial or ethnic origin and takes place with the purpose

or effect of violating the dignity of a person and of creating an

intimidating, hostile, degrading, humiliating or offensive

environment<

(d) an instruction to discriminate against persons on any

ground mentioned in paragraph (c) shall be deemed to be

discrimination.

(3) A less favourable treatment which is based on a

characteristic related to any of the grounds mentioned in paragraph (c)

of sub-article (2) of this article shall not constitute discrimination where

by reason of the particular occupational activities concerned, or of the

context in which they are carried out, the treatment is legitimate and the

characteristic constitutes a genuine occupational requirement which is

proportionate in the circumstances>

Provided that the burden of proving a genuine occupational

requirement shall lie on the person who alleges its existence.

(4) This Order shall not apply to 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.

The object of this Order is to implement the provisions of the

Directive.

(1) No person, establishment or entity, whether in the private

or public sector and including public bodies, shall discriminate against

any other person in relation to>

(a) social protection, including social security and

healthcare<

(b) social advantages<

(c) education<

(d) access to and supply of goods and services which are

available to the public, including housing<

(e) access to any other service as may be designated by law

for the purposes of this regulation.

(2) The failure by any person responsible for any

establishment and, or entity to fulfil his obligation to suppress harassment

as provided under sub-article (2) of article 6 of this Order shall, for the

purposes of sub-article (1) of this article, constitute discrimination.

(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 sub-article (1) of this article shall be deemed

to constitute discrimination in so far as the conditions under which the

facility or the insurance cover is offered or withheld reflect genuine

considerations based on the financial risk in the grant of such facilities

or of such insurance cover.

(1) Without prejudice to the provisions of any other law,

whosoever subjects another person to harassment deemed to be

discrimination for the purposes of this Order, or treats less favourably

another person by reason of such person having rejected or submitted

to such harassment, shall be guilty of an offence against this article and

shall, without prejudice to any other liability under any other law, be

liable on conviction to a fine (multa) of not more than one thousand liri

or to imprisonment for not more than six months, or to both such fine

and imprisonment.

(2) (a) Persons responsible for any establishment or entity

referred to in sub-article (1) of article 4 of this Order shall not permit

the harassment of persons who have a right to be present in such

establishment or entity, or to avail themselves of any facility, goods or

service provided at such establishment or entity.

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

aforesaid to prove that they took such steps as are reasonably practicable

to prevent such harassment.

It shall not be lawful to victimise any person for having made Victimisation of

complainant.

a complaint to the lawful authorities or for having initiated or participated

in proceedings for redress on grounds of alleged breach of the provisions

of these regulations, or for having disclosed information, confidential

or otherwise, to a designated public regulating body, regarding alleged

acts of discrimination or discriminatory treatment.

(1) It shall not be lawful for persons to publish or display, or Advertisements.

cause to be published or displayed, any advertisement which promotes

discrimination or which is discriminatory or which might reasonably

be understood as indicating an intention to discriminate.

(2) Any person who acts in breach of sub-article (1) of this

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

the penalties established for contraventions.

(1) Upon a request made by a person claiming to have been Person causing

harassment etc. to

harassed or discriminated against, or upon a request made by the Equality provide report.

Commission acting upon a complaint or otherwise, the person to whom

or against whom the complaint of the harassment or the discriminatory

treatment has been made or who has taken any steps whatsoever to

verify or investigate the complaint shall, within ten working days of

such request, provide the complainant or the Equality Commission, as

the case may be, with a report of the complaint and, or a report on the

steps taken to verify or investigate the complaint.

(2) The person requested to provide the report referred to

in sub-article (1) of this article shall be entitled to claim from the person

requesting the report or the Equality Commission, as the case may be,

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 harassment or discrimination if it is found that

such harassment or discrimination did in fact take place.

(1) The Commissioner, with the assistance of the Equality

Commission, shall keep under review the working of the provisions of

this Order.

(2) Subject to the other provisions of this Order, the

functions of the Commissioner under sub-article (1) of article 12 of the

relevant Act shall extend, and shall also apply mutatis mutandis, to

issues of equal treatment of persons within the meaning of the provisions

of this Order and to issues of compliance with, and the enforcement of

rights under, the provisions of this Order, which functions shall continue

to be exercised with the assistance of the Equality Commission.

(1) The Commissioner may initiate investigations on any

matter involving an act or omission that is allegedly unlawful under the

provisions of this Order.

(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 Order.

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

to make a complaint under sub-article (2) of this article 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.

The provisions of article 18 of the relevant Act and of any

regulations made thereunder, as well as any arrangements made under

those regulations in respect of references of a matter by the Commission

to the competent civil court for redress, shall apply to investigations

under this Order>

Provided that nothing in this article 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.

(1) If a person who considers that he or she has been

discriminated against establishes, before a court or other competent

authority, facts from which it may be presumed that there has been

direct or indirect discrimination against him or her, the burden of proving

that there has been no discrimination shall lie on the person,

establishment or entity against whom the allegation of discrimination

is directed.

(2) The provisions of sub-article (1) of this article shall also

apply where the Commission itself takes action to refer an allegation of

discrimination to the competent court on behalf of the person

discriminated against or where it intervenes in support of a person

alleging discrimination and taking action for redress.

Where an offence against the provisions of this Order is Offence committed

by company, etc.

committed by a partnership, company, association or other body of

persons, every person who, at the time of the commission of the offence,

was a director, manager, secretary or other similar officer of such

partnership, company, association or other body of persons or was

purporting to act in any such capacity shall be deemed to be guilty of

that offence unless he proves that the offence was committed without

his knowledge and that he exercised all due diligence to prevent the

commission of the offence.

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

before competent

Employment and Industrial Relations Act, a person who alleges that court.

any other person has committed in his or her regard any act which under Cap. 452.

any of the provisions of this Order 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) of this article it

shall be sufficient for the plaintiff to prove that he or she has been treated

less favourably in terms of the provisions of this Order and it shall be

incumbent on the defendant to prove that such less favourable treatment

was justified in accordance with the provisions of this Order.

(3) In any such action as is provided in sub-article (1) of

this article the plaintiff shall, over and above and in addition to such

damages and costs as may have been actually suffered and be due

according to law, be entitled to recover by way of compensation such

sum of money as the court in its discretion may consider reasonable

taking into account all the circumstances of the case and as the court on

the trial of the cause shall award and assess.

(1) Nothing in this Order or in any other law shall prevent Complainant may

be assisted by entity

any association, organization or other legal entity, having a legitimate enforcing this

interest in ensuring that this Order is complied with, from engaging Order.

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 this Order.

(2) The provisions of sub-article (1) of article 13 and of

sub-article (2) of article 15 shall mutatis mutandis apply to any

proceedings instituted in accordance with sub-article (1) of this article.

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

Lm0.28 (€0.65)