Combating Workplace Discrimination

Authors: Ann Bugeja, Krista Hili & Andrew Joseph Mifsud

Discrimination, whether direct or indirect, occurs when an individual is treated less favourably than others based on characteristics such as sex, sexual orientation, age, religion or belief, racial or ethnic origin, gender identity, or gender expression – without any objective or reasonable justification.[1]

Maltese legislation aims to prevent such discrimination through several pieces of legislation, namely the Employment and Industrial Relations Act (“EIRA”)[2] and the Equality for Men and Women Act[3] as well as subsidiary legislation on the matter such as the Equal Treatment in Employment Regulations[4] which  implements the EU Directives on the subject, including the Racial Equality Directive (EU 2000/43/EC) and the Employment Equality Framework Directive (EU 2000/78/EC). Yet, despite such legislation prohibiting discriminatory treatment at the workplace, employees still face discriminatory treatment regularly.

Forms of Discrimination

Discrimination in employment may take various forms such as when the employer fails to provide equal work to different employees, does not provide appropriate or similar benefits to their employees or does not abide by health and safety regulations. Furthermore, discriminatory behaviour may exist among all levels, including those holding managerial roles, and may even stem from a client or customer of the company in question.[5]

Discriminatory actions may include preferring less qualified individuals over others based on gender, assigning tasks that disadvantage an employee, or imposing unequal terms of employment. Some exceptions towards discriminating against an individual are permitted when a job requires specific characteristics justified by the nature of the role, genuine occupational requirements, or legal regulations.

Any discriminatory treatment towards an employee is prohibited under the EIRA. The latter defines discriminatory treatment as meaning “any distinction, exclusion or restriction which is not justifiable in a democratic society including discrimination made on the basis of marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership in a trade union or in an employers’ association”.[6]

Part IV of the said EIRA is dedicated to the protection of employees from discrimination at the workplace and caters for different types of discrimination that an employee may suffer.

Article 26 firstly prohibits discrimination in recruitment, hiring, workplace conditions, and employee dismissals. It states that employers cannot treat applicants, at recruitment stage, or else employees once they are formally employed by the company, unfairly based on discriminatory grounds, such as offering less favourable pay or worse working conditions for the same or equivalent work. The term “offering employment” in this case includes recruitment, training, and promotion, ensuring that anti-discrimination principles cover all stages of employment.

Secondly, article 27 goes on to highlight the principle of equality and states that employees performing work of equal value within the same class of employment[7] are entitled to equal remuneration. However, employers and employees, or their unions as representatives, may negotiate different salary scales and conditions for workers employed at different times through collective agreements, provided that such scales have clear timelines for achieving maximum pay. Importantly, any differences in employment terms must not be based on discriminatory treatment; otherwise, they are immediately deemed to be invalid. This provision essentially ensures fairness in pay while allowing flexibility for collective bargaining, provided it aligns with anti-discrimination principles outlined in the law.

Understanding Discrimination at the Workplace through Case law

Maltese Case Law

The Industrial Tribunal is the main judicial body that determines cases related to employment, including issues on discrimination in employment. Therefore, if an employee is facing discrimination at the workplace, their claim must be brought before the Industrial Tribunal within four (4) months of the alleged breach of the law or alleged discriminatory action. [8]

Cases brought before the Tribunal typically revolve around the unjust termination of employment, wherein discrimination is one of the factors that may lead to an employee being dismissed. This was the situation in Petar Angelovski v. Vince Zammit on behalf of Coral Café.[9] The plaintiff, who had been employed with the defendant for three (3) years, claimed he was unfairly dismissed after not attending a work shift. Angelovski claimed to have been threatened in that if he were not to show up to work, he would be dismissed. Other forms of abuse were that he would work long hours, he was not provided with adequate payslips,[10] and he was not paid an adequate salary, in comparison to the long hours he would work.

Although the employee had an overall good reputation at work, Angelovski was dismissed over the phone without being given any notice or compensation despite the defendant party arguing that formal prior warnings were duly provided to the employee before his dismissal.

The Tribunal decided that the termination of the employee was not according to law since the employee was treated in a discriminatory way, on the basis of articles 26 and 27 of EIRA. This was determined to be a difference in treatment stemming from the fact that he was a third country national and not a Maltese employee.

In another case, namely that of Claire Mizzi v. Bank of Valletta PLC,[11] the employee, as plaintiff, claimed that she was receiving discriminatory treatment by the defendant company when she undertook responsibilities which were not hers and was not promoted.  As her employer, the defendant company dismissed the existence of any discrimination as the plaintiff did not undertake any managerial responsibilities nor new role which she had claimed. The Tribunal concluded that since the plaintiff was qualified enough to reach a managerial position, she suffered a form discrimination when she was not given a promotion following her decision to undertake further managerial duties.

Furthermore, a direct violation of article 26 and article 27 of EIRA was deemed by the Tribunal in Jonathan Micallef et. v. Airmalta p.l.c. and the Union of Cabin Crew,[12] where the applicable collective agreement in question, enforced between Air Malta p.l.c. and the Union of Cabin Crew breached the ‘equal pay for equal work’ principle.

Certain provisions to the collective agreement permitted employees within the same pay scale category to have large discrepancies in their salary. Furthermore, certain employees with a higher pay scale received less pay than other employees within a lower pay scale category. Several employees, as plaintiffs alleged that the specific clause in the collective agreement allowing for such discrepancies was discriminatory and overall went against the principle of ‘equal pay for equal work of equal value’ which is enshrined in articles 26 and 27 of EIRA. These articles prohibit any wage differentiation for employees in the same job category and performing work of equal value. However, the Union of Cabin Crew, as the defendant party, rejected the claim that it had entered into a prejudicial collective agreement and stated that there was no discriminatory treatment implied.

The Tribunal deemed the clause as being discriminatory and in direct violation of articles 26 and 27 of the Act. Additionally, article 30 of EIRA gave the Tribunal the authority to declare such clause as being invalid while compensating the employees collectively a total of five hundred and eight five thousand-and fifty-six-euro (€585,056) to be paid within one (1) month by AirMalta p.l.c.

EU Case Law

On a European level, the case of Defrenne v. Sabena is considered to be a landmark case due to it establishing women’s right to equal treatment in the workplace. Defrenne brought an action against Sabena, her place of employment, for being paid less than male colleagues who carried out the same role as her. She claimed this was a violation of Article 119 of the Treaty of Rome (what is now Article 157 of the Treaty on the Functioning of the European Union “TFEU”) which prohibits discrimination between male and female employees.

The Brussels Court du Travail held that Article 119 of the Treaty of Rome establishes a direct link between the type of work performed and the pay received therefore confirming discriminatory treatment in regard to Defrenne.

In contrast, in the Angonese Case, discriminatory treatment was held to restrict the free movement of workers within the European Union. Mr. Angonese was an Italian national residing in Bolzano and whose mother tongue is German. He applied to take part in a recruitment competition for a private banking undertaking, the Cassa di Risparmio. One of the conditions for entry to the competition was possession of a certificate of bilingualism in Italian and German. To obtain the certificate, one must take a certification exam which is only held in the province of Bolzano. Without such certificate, he would not be admitted.

This requirement was held to be contrary to article 45 of the TFEU which states that freedom of movement for workers shall be secured within the European Union and that such freedom entails the abolition of any discrimination based on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment.

The court held that persons who were not resident in that province had little chance of acquiring the certificate and that it would be difficult if not impossible for them to gain access to the employment in question as a result. It added that since the majority of the residents of the province of Balzano are Italian nationals, the obligation to obtain the requisite certificate puts nationals of other member states and of other Italian provinces at a disadvantage by comparison with residents of the province.

It concluded that for a measure to be treated as being discriminatory on the grounds of nationality under the rules relating to the free movement of workers, it is not necessary for the measure to have the effect of putting all the workers of one nationality at an advantage, or of putting only workers of other member states at a disadvantage, but that it puts workers who are not of the nationality in question, at a disadvantage

Conclusion

Discrimination in the workplace remains a pressing issue in Malta, requiring proper enforcement of a robust legal framework that provides a strong foundation for addressing inequality. Employers must always aim to foster inclusive environments, implement comprehensive anti-discrimination policies, and provide training to ensure workplace equality becomes a reality rather than an aspiration. For employees, awareness of their rights under Maltese and European law is crucial to recognising and challenging discriminatory practices at their place of work.

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[1]Government of Malta, ‘Discrimination at the Workplace’ (Humanrights.gov.mt, 2023) <https://humanrights.gov.mt/discrimination-at-the-workplace/> accessed 19 November 2024;

[2] Chapter 452 of the laws of Malta;                

[3] Chapter 456 of the laws of Malta;

[4] Subsidiary legislation 452.95 of the laws of Malta;

[5] Ibid.1

[6] Article 2 of the EIRA, Chapter 452 of the laws of Malta;

[7] According to Article 1 of the EIRA, the term “class,” when referring to a group or category of employees, shall mean the groups or categories specified in a collective agreement. In the absence of a collective agreement or if the agreement does not define such groups or categories, it shall instead refer to the nature of the work performed or expected to be performed, regardless of the title or designation of the position;

[8] Article 30 of EIRA;

[9] per Chairperson Doreen Parnis, Industrial Tribunal Decision No. 2876, 10^th January 2023;

[10] Article 3 of the Itemised Payslip Regulations, Subsidiary Legislation 452.116 of the laws of Malta;

[11]Chairman Dr Martin Fenech, Industrial Tribunal Decision No. 2918, 29^th May 2023;

[12] decided by the Industrial Tribunal on the 25^th of July 2023.