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:
Employers should 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) in the workplace.
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:
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:
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.
Sexual harassment is prohibited under the Equality for Men and Women Act, 2003 (Cap 456 of the Laws of Malta) and under The Employment and Industrial Relations Act, 2002 (Cap 452 of the Laws of Malta). Sexual harassment that takes place whenever sexual favours are requested from the victim, or when the victim is subjected to an act of unwelcome physical intimacy, or any act or conduct with sexual connotations against the victim. Sexual harassment
Such behaviour includes spoken words, gestures or the production, display or circulation of written words, pictures or other material where the act, request or conduct is unwelcome to the victim and could reasonably be regarded as offensive, humiliating or intimidating to the victim.
The employer has the responsibility of ensuring that harassment does not take place at the workplace, as the Occupational Health and Safety Act holds that the employer is obliged to “prevent physical and psychological occupational ill-health” of the employees.
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.
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.
Remedies to the Employee
In case of alleged discriminatory treatment, breach of the principle of equal pay for work of equal value, victimization, harassment, employees may lodge a complaint before the Industrial Tribunal within four months of the alleged action. Employers may settle any claim with their employee through a settlement agreement before or after proceedings have been initiated.
If the Industrial Tribunal concludes that the complaint lodged by the employee on grounds of discrimination is justified, then the Industrial Tribunal may take such measures as it may deem fit, including the cancellation of any contract of service or of any clause in a contract or in a collective agreement which is discriminatory. The Industrial Tribunal may also order reasonable monetary compensation to the aggrieved party.
Should an employee still suffer from harassment at the place of work, then such person may resort to the Industrial Tribunal and lodge a complaint within four months of the alleged breach. The victim is protected, as it is not lawful to victimise any person for having made a complaint to the authorities.
Following the submission of the complaint, the Industrial Tribunal will conduct an investigation as it sees fit. If it is determined that the complaint was legitimate, the Industrial Tribunal may proceed and take whatever necessary remedies it deems necessary under the circumstances. In this scenario, the Industrial Tribunal may mandate payment in the form of compensation for any loss or damages sustained by the individual as a result of the breach.
If a person is found guilty of harassing any other individual at the place of work, then such person will be guilty of an offence, and upon conviction shall be liable to imprisonment for a period ranging from six months to two years and/or to a fine (multa) of not less than five thousand euro and not more than ten thousand euro.
Lodging a complaint in relation to harassment with the Industrial Tribunal does not preclude the victim from taking other actions, including actions before any other court of law, particularly before the Criminal Court. A victim may also lodge a complaint before the National Commission for the Promotion of Equality (NCPE) in the case of sexual harassment.
It is advised that victims of harassment seek legal help before lodging such claims.
At Empleo, we provide legal advice to employees on all matters outlined above, including advice on the scope and extent of applicability of applicable equality legislation, as well as legal advice to victims of discrimination, breach of the principle of equal pay for work of equal value, victimization and harassment.
Some of our services in this area include the following:
You may get in touch with us here to request an initial free legal consultation in relation to any of the matters outlined above.
Mariella graduated from the University of Malta with a doctorate in law in 2005. She completed a master’s degree in ‘European Private Law’ from the La Sapienza, University of Rome, and was admitted to the bar in Malta in 2006.
Mariella is a people person – and it is this attribute which has really characterised and shaped her career.
Over the years, she headed the legal departments of several corporate services firms. Due to her skillset, she was also entrusted with managing and overseeing operations and human resources, where she gained technical and practical experience in various corporate, commercial and employment matters.
Her practical hands-on experience and insight perfectly complement Mariella’s technical knowledge of employment law, thus placing her in an ideal position to understand and advise employers and employees alike on various matters that may arise at the workplace.
Mariella is passionate about employment law matters and provides her clients with the highest-quality legal service to achieve the best possible outcome and resolve any employment law related issues and concerns.
Bradley graduated Doctor of Laws from the University of Malta in 2005 and was admitted to the Bar in Malta in 2006. He advises clients on various corporate, commercial, employment and regulatory matters, with particular focus on company and financial services law.
He has assisted clients in various corporate and commercial matters by providing company law advice and assisting in the implementation of corporate finance, restructuring, mergers and acquisitions and similar transactions.
Bradley has also advised and assisted investment funds, fund managers and other investment services providers, banks and financial institutions, on various legal and regulatory matters relating to the setting up, authorisation and ongoing conduct of their activities in Malta.
His practice also covers general employment law matters. Bradley’s experience in company and financial services law enables him to focus on various corporate and regulatory aspects of employment relationships. In particular, he advises organisations on the implementation of employee share option and participation schemes, the implications of business transfers on employment relationships, as well as relations with senior employees.
Karl graduated Doctor of Laws from the University of Malta in 2005 and was admitted to the Bar in Malta in 2006.
Karl has gained considerable expertise in technology law and regularly assists clients in relation to intellectual property issues, commercial contracts and ways to ensure compliance with the General Data Protection Regulation (GDPR) and privacy laws. Whilst such matters used to be only given incidental importance when dealing with employment matters, they are now widely acknowledged to be vital in all employment relationships.
He is also regularly engaged by C-level executives to assist in negotiating employment contracts and settlement agreements.
Karl advises across a multitude of industries including technology; marketing; adtech; financial services; gaming; esports; consumer products; and media and telecommunications.