Remedies and enforcement

• Author: Ellul, Tonio
• Pages: 61-69

61

6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In Malta, the following procedures exist for enforcing the principle of equal treatment:

judicial/administrative/alternative dispute resolution such as mediation. As can be seen

below, recourse can be had by people alleging discrimination to the courts, commissions

and other authorities set up under law, to the Ombudsman and even to mediat ion.

Maltese legislation lays down various courses of action that may be followed should an

individual believe that he or she was subjected to discriminatory treatment. Apart from

recourse to action before the Civil Court, First Hall, sitting in its constitutional jurisdiction,

or before the Constitutional Court, th ere exist other bodies where an alleged victim can

address his or her complaint, depending on the nature of such complaint.

These include the Industrial Tribunal (under the E mployment and Industrial Relations Act

2002), the Commission for the Rights of Persons with Disabili ty (under the Equal

Opportunities (Persons with Disability) Act 2000), the National Commissi on for the

Promotion of Equality (under the Equality for Men and Women Act 2003), the Public Service

Commission (under the Constitution of Malta), the Ombudsman (un der the Ombudsman

Act 1995), the B roadcasting Authority (under th e Constitution of Malta), and the

Employment Commission (under the Constitution of Malta), as detailed h ereunder:179

- The Industrial Tribunal.180 Article 30 of the Employment and Industrial Relat ions Act

states: ‘A ġersĠn whĠ alleges that the emġlĠyer is in breach Ġf, Ġr that the cĠnditiĠns

of employment are in breach of articles 26, 27, 28 or 29, may within four months of

the alleged breach, lodge a complai nt to the Industrial Tribunal and the Industrial

Tribunal shall hear such complaint and carry out any investigations as it shall deem

fit.’ On the ba sis of the provi sions of Article 30, actions can be instituted even after

the employment relationship has been terminated provided that the relative time

limits are respected. Furthermore, Article 30(4) states that any action taken by a

complainant in accordance with the provisions of this article shall be without prejudice

to any further action that such complainant may be entitled to take under any other

applicable law and shall also be without prejudice to any other action to which th e

respondent may be subject in accordance with any other applicable law.

- The Commission for the Righ ts of Persons wit h Disability (CRPD) can initiate

investigations on any matter involving an act which is allegedly in vi olation of the

provisions of the law and may also do so on receipt of a complaint similar in na ture.

- The National Commission for the Promotion of Equality investigates complaints

received in respect of alleged acts of discrimination and assists any complaina nts in

safeguarding their rights.181

disabilities and that more research is carried out. More training and information sessions to employers are

also essential, especially on matters related to disability issues and the existing services available. It is also

important to ensure the retention of people with disabilities in employment, as some employers employ

people with disabilities for a short period of time with no intention of extending their contract for an

indefinite period. See submission to the Committee on the Rights of Persons with Disabilities in advance of

its cĠnsideratiĠn Ġf Malta’s 1st ġeriĠdic reġĠrt, February 2018.

179 Insofar as the Employment Commission is concerned, the Constitution specifically limits its remit to

discrimination based on political opinion.

180 The establishment and constitution of the tribunal are set out in Article 73 of the Employment and Industrial

Relations Act 2002.

181 The remit of the NCPE covers discrimination based on sex, sexual orientation, age, religion or belief, racial

or ethnic origin or gender identity and free movement of persons.