Discrimination in employment

In today’s busy and stressful world, employers tend to make their employees’ life at work as serene and tranquil as possible by creating a safe and ideal workplace environment

These employers master the idea that a happy (and healthy) employee is a productive employee. On the other hand, other employers, for several different reasons, tend to look down on their employees without acknowledging any of the latter’s hard work.

According to the Maltese Employment and Industrial Relations Act – article 26, discriminatory treatment shall include, but not be limited to:

The engaging or selection of a person who is less qualified than a person of the opposite sex;

Payment or employment conditions which are less favourable than those applied to an employee in the same work or work of equal value;

When an employer, knowingly manages and distributes the work tasks in a way for an employee to be assigned a less favourable status than others.

An exception to the above is in cases when the employer proves that the action was based on acceptable grounds related to work experience and/or performance.

Moreover, it shall not be lawful for any person to discriminate between applicants or group of applicants when offering or advertising opportunities for employment or when selecting applicants in relation to such opportunities. On the other hand, the above regulations also preclude and prohibit any type of discriminatory treatment between employees already in employment, in regards to conditions of employment or dismissal.

Article 27 of the aforementioned Act also provides for there to be equal remuneration for employees or classes of employees in relation to work of equal value. An exception to the latter is in cases where an employer and an employee or a union of workers agree otherwise.

In “Lorenza sive Lora Cascun v. Ministru tas-Sahha u Segretarju Permanenti fil-Ministeru tasSahha”, on 27 July 2020, the Industrial Tribunal concluded that in a case when an employee is made subject to any condition which is in line with Maltese Laws and company policies, the employee cannot plead discrimination at his/her workplace. In this case the employee argued that she was being discriminated as she was being requested to take a medical test in order for her to remain in employment with her employer at that time. However, the tribunal concluded that this test was an actual company policy and in line with Malta Government policies. The relevant tribunal went on to decide the case in favour of the defendant and determined that there was no discrimination in such case.

On the other hand, in “Aften Schembri et v. Playmobil Malta Limited”, on 23 September 2020, the Industrial Tribunal concluded that the plaintiffs had been treated differently from the other company employees as they were not provided the necessary training to improve their skills and succeed further within the company. In such case, only two employees were given the opportunity to further their skills and work in a new department which the defendants had wanted to. The tribunal also considered the fact that, unlike the defendants, the latter two employees were admitted to such new department without having prior working experience in a similar department.

Victimisation is another aspect of discrimination. An employee is deemed to have been victimised when s/he is treated badly and/or is made subject to a detriment solely based on the fact that said individual complained to the appropriate authority due to allegations of him/her being exposed to discrimination at the place of work.

It shall not be lawful for there to be any unjust treatment by the employer towards the employee based on the fact that said employee either made a complaint to the relevant authorities or for having initiated or participated in any legal proceedings based on alleged breaches of any provisions contained within the Employment and Industrial Relations Act.

Victimisation is also condemned in cases where an employee is mistreated for having disclosed information in relation to alleged illegal or corrupt activities being committed by his/her employer or by someone on the employer’s behalf.

Harassment at work is another unlawful discriminatory act. No employer or employee shall harass any of their colleagues by subjecting such persons to any unwelcoming acts including: Spoken words;

Gestures;

The displaying or circulation of written words, pictures or other material based on sexual discrimination and which could reasonably be regarded as offensive/humiliating and/or intimidating.

Moreover, subjecting an employer or an employee to an act of physical intimacy or requesting any sexual favours from the victim, shall also suffice for there to exist the offence of harassment.

This article has been authored

by Dr Bjorn Camilleri, junior advisor at CSB Group who assists clients with Employment Law

matters

Chapter 452 – Industrial and Employment Relations Act