EQUAL TREATMENT OF PERSONS ORDER

SUBSIDIARY LEGISLATION 460.15

EQUAL TREATMENT OF PERSONS ORDER

3rd April, 2007

LEGAL NOTICE 85 of 2007, as amended by Legal Notices 267 and 427

of 2007.

The title of this Order is the Equal Treatment of Persons

Order.

(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) -

(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 sub-article

(2)(c) 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 and determining occupational

requirement which is proportionate in the circumstances

Provided that the burden of proving a genuine and

determining 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

p r i va te o r pu b li c se ct or an d i n cl ud i ng pu b li c b o di es, sh al l

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 article 6(2) shall, for the purposes of sub-article (1),

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) 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) 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 two thousand and three hundred and twenty-nine euro

and thirty-seven cents (€2,329.37) 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 article 4(1) shall not permit the

harassment of persons who have a right to be present in

such establishment or entity, or to avail themselves of

a n y f a c i l i t y, g o o d s o r s e r v i c e p r o v i d e d a t s u c h

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 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 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) 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

harassed or discriminated against, or upon a request made by the

Equality 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) 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) The Commissioner may also conduct independent surveys,

publish independent reports and make recommendations on any

issue relating to discrimination.

(3) Subject to the other provisions of this Order, the functions

of the Commissioner under article 12(1) 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) 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.

(4) The Commissioner may also provide independent

assistance to victims of discrimination to enable them to pursue

their complaints

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) 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

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

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 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) 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) 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

any association, organization or other legal entity, having a

legitimate interest in ensuring that this Order is complied with,

from engaging 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 articles 13(1) and 15(2) shall mutatis

mutandis apply to any proceedings instituted in accordance with

sub-article (1).