Harassment & Discrimination

Embracing Equality

Diversity and dignity are two fundamental principles which an employer should embrace as a basis of its business and its relationships, especially in relation to its employees. An employer should encourage its employees to embrace diversity and to treat each other with the dignity, fairness, respect and courtesy that everyone deserves, irrespective of ethnic origin, religious belief, disability, age, sex or sexual orientation.

An employer should strive towards having and maintaining a working environment that is free of any discrimination, intimidation, bullying or any form of harassment, which the employer should not tolerate or condone in any way. In this spirit, an employer should seek to implement and enforce all applicable laws granting protection to its employees against discrimination and harassment in any form.

The Employment and Industrial Relations Act (Chapter 452 of the laws of Malta) and the Equal Treatment in Employment Regulations (Subsidiary Legislation 452.95) prohibit any form of harassment, and 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. The said regulations apply to all persons in relation to:

• 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;
• access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
• employment and conditions of employment, including remuneration and dismissals; and
• 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.

Employers should also be aware of other legislative measures that seek to promote and safeguard equality, including the Equal Opportunities (Persons with Disability) Act (Chapter 413 of the laws of Malta), and the Equality for Men and Women Act (Chapter 456 of the laws of Malta).

Discrimination

Discrimination can take various forms and may manifest itself on various grounds, including race, ethnic origin, skin colour, nationality, religion, religious belief, disability, age, sex, sexual orientation, marital status, pregnancy, and even the employment status of individuals (including, for instance, discrimination between full-time indefinite employees and fixed-term or part-time employees).

Discriminatory treatment may occur where:

• a person is treated less favourably than another is, has been, or would be, treated in a comparable situation;
• 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, without any objective, legitimate and proportionate justification;
• a person is treated less favourably than others on the basis that such person has made a complaint or otherwise taken legal action against the employer or any other person for harassment or discrimination or because such person has supported someone else in so doing;
• a person instructs or encourages any person to discriminate against another person; or
• a person neglects the obligation to suppress any form of harassment or discrimination.

Harassment

Harassment is any form of unwanted conduct or request relating to religion or religious belief, disability, age, sex, including discriminatory treatment related to gender reassignment and to pregnancy or maternity leave, sexual orientation, or racial or ethnic origin, having the purpose or the effect of:

• violating the dignity of the person who is so subjected; and
• creating an intimidating, hostile, degrading, humiliating or offensive environment for the person who is so subjected.

Harassment may be persistent or even a one-off occurrence, and may be instigated by an individual or a group of individuals. It may take various forms, whether verbal, written, physical or otherwise.

Duties of the Employer

It is unlawful for a person to subject another person to discriminatory treatment or harassment, whether relating to conditions for access to employment, access to training, employment and conditions of employment, or membership of any employer, employee or other professional organization.

Specifically, when advertising or offering employment or when advertising opportunities for employment or when selecting applicants for employment, an employer may not subject any applicants for employment or any class of applicants for employment to discriminatory treatment. Nor may an employer subject any of its employees to discriminatory treatment in respect of conditions of employment or dismissal.

The employer has a duty to ensure that, for the same work or for work of equal value, there shall be no direct and indirect discrimination on grounds of sex with regard to all aspects and conditions of remuneration. The employer must 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.

The law also highlights the importance of employers providing reasonable accommodation for persons with disabilities. In particular, an employer must 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.

The law allows for certain preferences or exclusions to be applied by an employer, but only by way of exception when any such preference or exclusion is reasonably justified taking into account the nature of the vacancy to be filled or the employment offered, or where a required characteristic constitutes a genuine and determining occupational requirement, or where the requirements are established by any applicable laws or regulations.

Measures to be taken by an Employer

An employer is required to take effective measures to prevent all forms of discrimination and harassment, and is expected to use appropriate means to bring to the attention of its employees the provisions of applicable equality laws, as well as any measure taken to further the aim of such laws.

In this respect, it is important that an employer has in place a comprehensive policy framework which comprises rules, policies and procedures that the employer undertakes to implement and enforce with a view to safeguarding equality amongst both prospective and existing employees. This should not merely set out information relating to statutory entitlements, but should also prescribe effective internal procedures and remedies.