EQUAL TREATMENT IN EMPLOYMENT REGULATIONS

SUBSIDIARY LEGISLATION 452.95

EQUAL TREATMENT IN EMPLOYMENT

REGULATIONS

5th November, 2004

LEGAL NOTICE 461 of 2004, as amended by Legal Notices 53, 338 and

427 of 2007, 137 of 2008, 444 of 2011 and 274 of 2014.

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

Employment Regulations.

(2) These regulations give effect to the relevant provisions of

Council Directives 76/207/EEC, 2000/78/EC, 2000/43/EC, 2002/

73/EC and 2006/54/EC and apply to all persons as regards both the

public and private sectors and including service with the

Government in accordance with the Extension of Applicability to

Service with Government (Equal Treatment in Employment)

Regulations.

(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, sex,

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 subregulation (3) which respect the minimum

requirements in these regulations.

(1)

For the purposes of these regulations -

"the Act" means the Employment and Industrial Relations Act;

"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;

"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

(a) harassment and sexual harassment, as well as any less

favourable treatment based on a person’s rejection of

or submission to such conduct;

(b) instruction to discriminate against persons on grounds

of sex;

(c) any less favourable treatment of a woman related to

pregnancy or maternity leave within the meaning of

Directive 92/85/EEC;

(d) in so far as the ground of sex is concerned, any less

favourable treatment of a person who underwent or is

undergoing gender reassignment, which for the

purpose of these regulations shall mean where a person

is considering or intends to undergo, or is undergoing

or has undergone, a process, or part of a process, for

the purpose of reassigning the person’s sex by

changing physiological or other attributes of sex;

"employment" means employment under a contract of service

and includes an apprentice 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;

"equality body" means a body or bodies for the promotion of

equal treatment of all persons without discrimination on the

grounds of racial or ethnic origin;

"pay" means the ordinary basic salary and any other

consideration, whether in cash or in kind, which the worker

receives directly or indirectly, in respect of his or her employment

from his or her employer;

"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 subregulation (1), terms and

expressions used in these regulations shall, unless the context

requires otherwise, have the meaning assigned to them by the Act.

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

person to discriminatory treatment, whether directly or indirectly,

on the grounds of a particular religion or religious belief, disability,

age, sex, including discriminatory treatment related to gender

reassignment and to pregnancy or maternity leave as referred to in

the Protection of Maternity (Employment) Regulations, 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 subregulation (1);

(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, sex, 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 4A 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 subregulation (1), 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,

and

(b) creating an intimidating, hostile, degrading,

humiliating or offensive environment for the person

who is so subjected.

(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.

(5) No person shall sexually harass another person by

subjecting him to any form of unwanted verbal, non-verbal or

physical conduct or request of a sexual nature, when such conduct

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

violating the dignity of the person who is so subjected, in particular

when creating an intimidating, hostile, degrading, humiliating or

offensive environment for the person who is so subjected.

(1) It shall be the duty of the employer to ensure that for

the same work or for work to which equal value is attributed, there

shall be no direct and indirect discrimination on grounds of sex

with regard to all aspects and conditions of remuneration.

(2) The employer shall ensure, in particular, that where a job

classification system is used for determining pay, it shall be based

on the same criteria for both men and women and so drawn up as to

exclude any discrimination on grounds of sex.

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

difference of treatment based on a characteristic related to grounds

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

and racial or ethnic origin 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

p e r s o n ’s r e l i g i o n o r r e l i g i o u s b e l i e f s h a l l n o t c o n s t i t u t e

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.

(4) With regards to access to employment, including the

training leading thereto, a difference of treatment which is based on

a characteristic related to sex shall not constitute discrimination

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 its objective is legitimate

and the requirement is proportionate.

Employers shall provide reasonable accommodation for

persons with disabilities. In particular, employers shall take

appropriate measures to enable a person with a disability to have

access to, participate, or advance in employment, or to undergo

training unless such measures would impose a disproportionate

burden on the employer

Provided that this burden is not disproportionate when it is

sufficiently remedied by measures existing within the framework of

the national disability policy.

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

treatment on the ground of age shall not constitute discriminatory

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

subregulation (1) 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.

The Department of Industrial and Employment Relations

shall act as the equality body in respect of issues relating to race or

ethnic origin falling under these regulations and shall act

independently in the carrying out of such functions.

(1) Nothing in these regulations shall render unlawful any

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 paragraph (a)

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 grounds of

religion or religious belief, disability, age, sexual orientation, and

racial or ethnic origin.

(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.

(3) Nothing in these regulations shall render unlawful any act

do ne in connection with maintaini ng or ad opting measures

providing for specific advantages in order to make it easier for the

under-represented sex to pursue a vocational activity or to prevent

or compensate for disadvantages in professional careers with a

view to ensuring full equality in practice between men and women

in working life.

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 subregulation (1) 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 subregulation (1) 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

discriminatory treatment, whether direct or indirect, in relation to

his employment in terms of these regulations may, within four

months of the alleged breach, refer the matter to the Industrial

Tribunal for redress as provided in article 30 of the Act.

(2) Without prejudice to subregulation (1), 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 subregulations (1) and (2),

where persons who consider themselves wronged because the

principle of equal treatment has not been applied to them establish,

before the Court or Industrial Tribunal, facts from which it may be

presumed that there has been direct or indirect discrimination, it

shall be for the defendant to prove that there has been no breach of

the principle of equal treatment on the hearing of the complaint,

and the Court or Industrial Tribunal shall uphold the complaint if

the defendant does not prove that he did not commit that unlawful

act.

(4) Subregulation (3) shall, insofar as discrimination based on

sex is concerned, also apply to situations covered by the Protection

of Maternity (Employment) Regulations, the Parental Leave

Entitlement Regulations, and the Urgent Family Leave

Regulations.

(1) Nothing shall prevent any association, organization or

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

regulations are complied with, to engage itself either on behalf of

or in support of the complainant, with his or her approval, in any

judicial or administrative procedure which is provided for the

enforcement of obligations under these regulations.

(2) The provisions of regulation 10(3) shall apply to any

proceedings commenced in accordance with this regulation..

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.

It shall be the duty of the employer to take effective

measures to prevent all forms of discrimination on grounds of sex,

in particular harassment and sexual harassment in the workplace, in

access to employment, vocational training and promotion.

Any provisions contrary to the principle of equal treatment

in any law, 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 two thousand and three

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

to imprisonment for a period not exceeding six months, or to both

such fine and imprisonment.

These regulations shall be without prejudice to the

Protection of Maternity (Employment) Regulations, the Parental

Leave Entitlement Regulations, and the Urgent Family Leave

Regulations.

EQUAL TREATMENT IN EMPLOYMENT