Exceptions

• Author: Ellul, Tonio
• Pages: 47-56

47

4 EXCEPTIONS

4.1 Genuine and determining occupational requirements (Article 4)

In Malta, national legislation provides for exceptions for genuine and determinin g

occupational requirements.

Regulation 4(1) of the Equal Treatment in Employment Regulations provides that any

difference of treatment based on a characteristic related to religion or religious belief,

disability, age, sexual orientation or racial or ethnic origin shall not constitute

discriminatory treatment if, by reason of the nature of the particular occupational activities

concerned or of the context in which they are carried out, such a characteristic constitutes

a genuine and determining occupational requirement, provided that the objective is

legitimate and the requirement is proportionate. This clearly reflects the relevant provisions

of the directives and is therefore in conformity with the relative provisions .

Subparagraph (3) of Article 26 of the Employment and Industrial Relations Act provides

that:

‘The ġrĠvisiĠns Ġf subparagraph (1) and (2) shall be without prejudice to the rights

and obligations prescribed by the Equal Opportunities (Persons with Di sability) Act,

and shall not apply to any preference or exclusion which is reasonably justified taking

into ac count 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

regulatiĠns.’

Furthermore, Article 2(3) of the Equal Treatment of Persons Order provides that a less

favourable treatment which is based on racial or ethnic origin shall not constitute

discrimination wh ere, by reason of the particular occupational activities concerned or of

the context in which they are carried out, the treatment is legitimate and the characteristic

constitutes a genuine occupational requirement which is proportionate in the

circumstances. The burden of proving a genuine occupational requirement shall lie on the

person who alleges its existence. We note here that th e reference to the requirement of a

‘legitimate Ġbjective’ is a bsent. This ġrĠvisiĠn is nĠt in line with the ġrĠvisiĠns Ġf the

directives, as the requirement here is that the treatment is legitimate, rather than the

objective.

4.2 Employers with an ethos based on religion or belief (Article 4(2) Directive

2000/78)

In Malta, national law provides for an exception for employers with an ethos based on

religion or belief.

Regulation 4(2) of the Equal Treatment in Employment Regulations states that when an

employer has an ethos based on religion or religious belief, the nature of the employm ent

or the context in which it is carried out constitut e a sufficiently genuine and legitimate

justification f or the employer t o require that s uch work be carried out by a person of a

ġarticular religiĠn Ġr religiĠus belief, and any dif ference Ġf treatment based Ġn a ġersĠn’s

religion or religious belief shall not constitute discriminatory treatment, provided that it is

proportionate to apply that requirement in that particular case.

In addition, Regu lation 4(3) provid es that empl oyers whose ethos is based on religion or

religious belief shall have the right to requir e individuals working for them to act i n good

faith and with lĠyalty tĠ the ĠrganisatiĠn’s ethĠs, ġrĠvided that the Ġther ġrĠvisiĠns Ġf the

Regulations are complied with.