EQUAL TREATMENT IN SELF-EMPLOYMENT AND OCCUPATION ORDER

EQUAL TREATMENT IN

SELF-EMPLOYMENT AND OCCUPATION

SUBSIDIARY LEGISLATION 460.16

EQUAL TREATMENT IN SELF-EMPLOYMENT

AND OCCUPATION ORDER

3rd April, 2007

LEGAL NOTICE 86 of 2007, as amended by Legal Notices 379 of 2009

and 260 of 2012.

The title of this Order is the Equal Treatment in Self-

Employment and Occupation Order.

In this Order, unless the context otherwise requires

''the Directives'' means Council Directive 2000/43/EC of 29 June

2000 implementing the principle of equal treatment between

persons irrespective of racial or ethnic origin and Council Directive

2000/78/EC of 27 November 2000 establishing a general

framework for equal treatment in employment and occupation;

''discriminatory treatment'' shall have the same meaning assigned

to it by regulation 2(1) of the relevant regulations;

''th e r elev ant r eg ul ation s '' mean s the E q u al Tr eatm en t i n

Employment Regulations.

The object of this Order is to further implement the

provisions of the Directives.

Regulations 1 to 8, both inclusive, 12, 12A, 13 and 14 of

the relevant regulations, shall be applicable to all persons, also in

r e la ti o n t o c o n d i ti o n s f o r ac ces s to s el f - e m p l o y m e n t o r t o

occupation, including the spouses of persons in self-employment or

occupation, not being employees or business partners, where they

habitually participate in the activities of the self-employed or occupied

person and perform the same tasks or ancillary tasks, and the

provisions of regulation 1(3) and (4) of the relevant regulations

shall be understood and construed accordingly.

(1) No person in self-employment or occupation shall be

discriminated against in relation to the establishment, equipment or

extension of a business or the launching or extension of any other

form of self-employed activity or occupation.

(2) For the purpose of this Order, a person in self-employment

or occupation shall also be deemed to have been discriminated

against if in relation to the establishment, equipment or extension

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

self-employed activity or occupation he is subject to harassment or

sexual harassment, or if any person is instructed to discriminate

against a self-employed or occupied person.

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

discriminatory treatment has occurred, the person making the

allegation, or the competent authority, if either deems fit, shall have

the right to send a written notification to any person or organisation

EQUAL TREATMENT IN

SELF-EMPLOYMENT AND OCCUPATION

to whom this Order applies, hereafter referred to as the respondent,

of the alleged discriminatory treatment received, giving any

r elev an t de tails an d r eq u est in g a r ep ly. On r ecei pt o f s uch

notification, the respondent shall submit a written reply within ten

working days of the date of receipt of such notification, giving his

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-article (1) shall be

admissible in proceedings brought before any Court, and if it

appears to the 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 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 of sub-article (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 before

the Court.

(1) Any person claiming to have been subjected to

discriminatory treatment, whether direct or indirect, in relation to

conditions for access to self-employment or to occupation in terms

of this Order or any person alleging that any other person has

committed in his or her regard any unlawful act under this Order

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.

(2) In any proceedings mentioned in sub-article (1), where

persons who consider themselves wronged because the principle of

equal treatment has not been applied to them establish before the

Court 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 shall

uphold the complaint if the defendant does not prove that he did not

commit that unlawful act.

(1) Nothing shall prevent any association, organization or

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

Order is 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 this Order.

(2) The provisions of article 6(2) shall apply to any

proceedings commenced in accordance with this article.