The Shift in the Burden of Proof in Employment Discrimination Claims under Maltese Law

Author: Pamela Dingli

The general rule governing civil proceedings under Maltese law is that the burden of proof rests upon the party making an allegation. This principle is codified in Article 562 of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta), which provides that “Saving any other provision of the law, the burden of proving a fact shall, in all cases, rest on the party alleging it”. Thus, unless the law states otherwise, the party asserting a fact must prove its existence.^[1] In employment disputes, an employee alleging unlawful conduct by an employer would ordinarily be expected to establish the supporting facts before obtaining any remedy.

Employment discrimination claims in Malta constitute one of the most significant exceptions to this rule, since the burden of proof for discrimination does not rest solely on the employee. Recognising the practical difficulty employees face in proving discriminatory treatment, since the relevant evidence typically lies within the employer’s knowledge or control, Maltese employment legislation adopts a modified evidential framework.[2] Under this framework, the employee must first establish facts from which discrimination may reasonably be presumed (a “prima facie case”). Only once that threshold is met does the legal burden shift to the employer, who must then show that the treatment in question was based on objective, lawful and non-discriminatory grounds.[3] Should the employer fail to discharge this burden, the Industrial Tribunal or competent court may conclude that unlawful discrimination has occurred. The shift is therefore conditional, not automatic. It indeed operates as a two-stage process rather than a presumption in the employee’s favour.

Council Directive 2000/78/EC – The European Origin of the Burden-Shifting Principle

This burden of proof framework for discrimination claims in Malta is derived from EU law, principally Council Directive 2000/78/EC of 27 November 2000, which established a general framework for equal treatment in employment and occupation[4] and sought to ensure equal opportunity regardless of religion or belief, disability, age or sexual orientation.[5] While Member States retain procedural autonomy in most respects, the Directive set common minimum standards for enforcing anti-discrimination rights.

Article 10 of the Directive gives effect to the burden-shift described above. It reads “Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.” Once a claimant establishes facts suggesting that direct or indirect discrimination may have occurred, the burden moves to the employer to prove otherwise.[6] The rationale is practical. Employers control the relevant records (personnel files, internal communications, performance reviews), and without the shift, proving discriminatory intent would be nearly impossible for most claimants. This balances protection for victims of discrimination against protection for employers from baseless claims, by still requiring claimants to establish a credible initial case before the burden moves.

Subsidiary Legislation 452.95

Malta implemented Directive 2000/78/EC primarily through the Equal Treatment in Employment Regulations (Subsidiary Legislation 452.95), which transpose the Directive and establish the procedural framework for discrimination claims before the Industrial Tribunal and the Civil Courts. The Regulations aim not merely to prohibit discrimination on grounds such as sex, religion or belief, disability, age, sexual orientation, and racial or ethnic origin, but also to ensure those subjected to discriminatory treatment can enforce their rights effectively.[7]

Regulation 10(3), mirroring Article 10 of the Directive, gives effect to the shift domestically. An employee must first point to objective facts suggesting discrimination may have occurred; mere suspicion or belief is not enough. Once that threshold is met, the employer must prove there was no breach of equal treatment, or the claim will be upheld. This mechanism applies to both direct and indirect discrimination, and is especially important for the latter, where a facially neutral practice disadvantages a protected group unless the employer can objectively justify it.

Other Maltese Subsidiary Laws Incorporating the Burden Shift

The same burden-shifting logic runs through several other pieces of Maltese employment legislation, particularly around dismissal:

1. Protection of Maternity (Employment) Regulations (S.L. 452.91) – Regulation 12A(c) requires employers to give written reasons for dismissing a pregnant employee; failure to do so can itself be treated as evidence of discriminatory intent.
2. Work-Life Balance for Parents and Carers Regulations (S.L. 452.125) – Regulation 14(3) shifts the burden to the employer where a worker shows facts suggesting dismissal was linked to taking parental/carers’ leave or requesting flexible work.
3. Transparent and Predictable Working Conditions Regulations (S.L. 452.126) – Regulation 18 protects workers from dismissal for asserting statutory rights, includes a similar burden-shifting mechanism, and grants a right to request written dismissal reasons.
4. Temporary Agency Work Regulations (S.L. 452.133) – Regulation 11(3) places the burden on the agency to objectively justify any less favourable treatment of agency workers compared to directly employed comparators.
5. Miscarriage Leave Regulations – Regulation 10 makes dismissal for taking miscarriage leave unlawful (with a 15-day window for employers to provide written reasons if requested), and Regulation 10(3) applies the same burden-shifting approach.
6. Equal Pay (Transparency and Reporting) Regulations (S.L. 452.173) – Regulation 15 shifts the burden to employers in pay discrimination claims, particularly where transparency obligations have not been met.

All the above six sets of regulations share the same rationale: employers hold the relevant evidence (internal records, decision-making processes, pay structures), so it would be unfair and impractical to require employees to prove an employer’s subjective motives directly.

 Maltese Case Law on the Burden of Proof in Discrimination ClaimsThe statutory provisions above establish the framework, but it is the courts that have determined how it operates in practice, clarifying both the evidential threshold employees must meet and the extent of the employer’s obligation once the burden shifts.

Pierre Tonna v Dr Duncan Borg Myatt, Joanna Calleja and Malta Freeport Terminals Ltd (First Hall Civil Court, 30 October 2024)

In this judgment,[8] the Court reaffirmed that Regulation 10(3) requires the employee to first establish facts giving rise to a reasonable presumption of discrimination before the employer becomes responsible for disproving it.[9] The claimant alleged discriminatory treatment relative to other employees, so the Court examined whether comparable employees had received modified duties or alternative positions under materially similar circumstances.[10]

The Court found that the comparator employees had obtained their positions through the employer’s standard recruitment process, a process equally available to, and previously used successfully by, the claimant. No objective evidence of differential treatment was found, so no prima facie case was established and the burden never shifted.[11]

The judgment is significant for two reasons. First, it confirms that dissatisfaction with a decision, without objective evidence of differential treatment, does not trigger Regulation 10(3).[12] Second, it underscores the importance of identifying an appropriate comparator: a claimant must generally show that someone in materially similar circumstances was treated more favourably before the evidential burden can move.[13]

Attard Frederick v Malta International Airport plc (Court of Appeal, 27 May 2015)

This earlier authority[14] clarified the relationship between the general rule in Article 562 and the special mechanism in Regulation 10(3). On appeal from an Industrial Tribunal decision that had placed the burden on the claimant throughout, the appellant argued this was inconsistent with Regulation 10(3) and Article 10 of the Directive.[15]

The Court of Appeal agreed that Maltese law does provide for a reversal of the burden of proof, but held that the appellant had overlooked the preliminary requirement: the employer’s obligation to disprove discrimination arises only once the employee has established the necessary preliminary facts. As the appellant had not done so, the reversal never became operative.[16] The judgment confirms that Regulation 10(3) qualifies, rather than abolishes, the general rule in Article 562[17] ,reconciling ordinary civil procedure with the special protection afforded by discrimination legislation.[18]

Key Principles from Case Law

Maltese Courts have developed a structured approach to how the burden of proof operates in employment discrimination claims:

1. There is no automatic shift. Filing a claim does not by itself move the burden, the employee must first point to objective facts giving rise to a reasonable presumption of discrimination.
2. A subjective grievance is not enough. The treatment complained of must be shown to connect to a protected ground recognised by law.
3. Once triggered, the employer’s burden is real. Bare denials or unsupported assertions will not do; the employer must produce credible, objective evidence that the decision rested on legitimate, non-discriminatory grounds.
4. These rules have a purpose, ensuring that employees are not left without a remedy simply because direct proof of discriminatory intent is hard to obtain. Yet this is not to the detriment of procedural fairness owed to employers.

Practical Implications for Discrimination Claims in Malta

The burden of proof mechanism in discrimination addresses a key imbalance in Malta’s employment law. Because employers hold the evidence on recruitment, promotion, discipline and dismissal, requiring only a prima facie case from employees protects them from being denied a remedy purely for lack of access to internal records. For employers, this makes documentation essential: clear policies, objective evaluations, and written reasons for key decisions can rebut discrimination claims, whereas inconsistent explanations can strengthen them. The framework therefore does more than shape litigation. It drives better, fairer workplace governance generally.

Conclusion

The shift in the burden of proof for discrimination claims represents one of the most significant procedural developments in Maltese employment law. The burden-shifting mechanism is designed as a balancing tool, not a pro-employee or pro-employer bias. It addresses the practical information asymmetry in employment relationships by lowering the employee’s initial evidential bar. While still requiring employees to provide something concrete, this shift does not negate employers the fair opportunity to justify their decisions with real evidence. On the one hand, employees must be afforded effective protection against discrimination, recognising that discriminatory conduct is often subtle, concealed or difficult to prove through direct evidence. On the other hand, employers are not presumed to have acted unlawfully merely because an allegation has been made. The employee remains under an initial obligation to establish facts capable of supporting a presumption of discrimination before the evidential burden transfers to the employer.

The burden-shifting mechanism does not undermine the fundamental principles of procedural fairness but instead seeks to ensure that discrimination legislation is effective in practice rather than merely theoretical. This reflects Maltese employment law’s broader trajectory toward protecting fundamental worker rights without abandoning employer safeguards or procedural fairness.

Key Takeaways

The general rule governing civil proceedings under Maltese law is that the burden of proof rests upon the party making an allegation. 

In Malta, the burden of proof in employment discrimination claims shifts to the employer once the employee establishes a prima facie case. The employee must first point objective facts from which discrimination may reasonably be presumed; only then must the employers prove the treatment was based on objective, lawful and non-discriminatory grounds. The shift is conditional, not automatic.

The rule derives from Article 10 of Council Directive 2000/78/EC, transposed into Maltese law by Regulation 10(3) of the Equal Treatment in Employment Regulations (S.L. 452.95).

Six further sets of Maltese subsidiary regulations apply the same logic, covering maternity, work-life balance, transparent working conditions, temporary agency work, miscarriage leave and equal pay.

Maltese courts have confirmed that filing a claim does not by itself shift the burden see Pierre Tonna v Malta Freeport Terminals Ltd (2024) and Attard Frederick v Malta International Airport plc (2015).

FAQs: Burden of Proof and Discrimination Claims in Malta

Who has the burden of proof in a Maltese employment discrimination claim?

In discrimination claims, the burden shifts to the employer once the employee establishes facts from which discrimination may reasonably be presumed.

What is a prima facie case of discrimination under Maltese law?

A prima facie case exists where the employee points to objective facts from which a tribunal could reasonably presume discrimination occurred, typically evidence that a comparator in materially similar circumstances was treated more favourably. Mere suspicion, belief or dissatisfaction with a decision is not sufficient.

Does the burden of proof shift automatically when a discrimination claim is filed?

No. Maltese courts have consistently held that the shift is conditional. Filing a claim does not by itself move the burden; the employee must first discharge the preliminary evidential threshold. This was confirmed in Attard Frederick v Malta International Airport plc and reaffirmed in Pierre Tonna v Malta Freeport Terminals Ltd.

What must an employer prove once the burden shifts?

The employer must produce credible, objective evidence that the treatment complained of was based on legitimate, lawful and non-discriminatory grounds. Bare denials or unsupported assertions are insufficient. If the employer fails to discharge this burden, the Industrial Tribunal or competent court may conclude that unlawful discrimination occurred.

Which Maltese law contains the burden-shifting rule?

The mechanism appeared for the first time in Regulation 10 (3) of the Equal Treatment in Employment Regulations (Subsidiary Legislation 452.95) and is now included in six other sets of subsidiary regulations covering maternity, work-life balance, transparent working conditions, temporary agency work, miscarriage leave and equal pay.

How can employers protect themselves against discrimination claims in Malta?

By documenting decisions. Clear written policies, objective performance evaluations and recorded reasons for recruitment, promotion, disciplinary and dismissal decisions allow an employer to discharge the reversed burden. Inconsistent or undocumented explanations tend to strengthen a claimant’s case.

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[1] Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, art 562.

[2] Equal Treatment in Employment Regulations, Subsidiary Legislation 452.95, reg 10(3).

[3] Equal Treatment in Employment Regulations (n 2) reg 10(3).

[4] Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.

[5] ibid recital 11; arts 1–3.

[6] Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, art 10.

[7] Equal Treatment in Employment Regulations, Subsidiary Legislation 452.95; Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16.

[8] Pierre Tonna v Dr Duncan Borg Myatt, Joanna Calleja u għal kull interess li jista’ jkollha s-soċjetà Malta Freeport Terminals Ltd (C-27581) (Civil Court (First Hall), Sworn Application No 753/2021GG, 30 October 2024).

[9] ibid.

[10] ibid.

[11] ibid.

[12] ibid.

[13] ibid.

[14] Attard Fredrick (n 24).

[15] ibid; Equal Treatment in Employment Regulations (n 12) reg 10(3); Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16, art 10.

[16] Attard Fredrick (n 24).

[17]  “Saving any other provision of the law, the burden of proving a fact shall, in all cases, rest on the party alleging it.”

[18] ibid; Code of Organisation and Civil Procedure, Chapter 12 of the Laws of Malta, art 562.