Sensitive or controversial issues

• Author: Ellul, Tonio
• Pages: 85-86

85

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national leve l

There are some instances under Maltese law where national provisions are more restrictive

in scope than the provisions of the directives. Hence, in these instances, national legislation

does not conform to the provisions of the directives.

The prohibition of instructions to discriminate under the Equal Treatment of Persons Order

is more restrictive than under the provisions of the directive. In essence, the order prohibits

instructions to harassment221 but not (explicitly) instructions to discriminate. There are no

provisions prohibiting instructions to discriminate on the grounds of racial/ethnic origin in

fields outside employment covered by Directive 2000/43/EC. 222

Likewise, the same Order provides a more restrictive reference under Article 2(3) when

referring to the treatme nt being legitimate and objective as the criteria for determining a

genuine occupational requirement.223

The Equal Treatment in Employment Regulations224 appear to conform wit h Article 4(2) of

Council Directive 2000/78/EC, except for the fact that the national regulations provide for

an ethos based on religion or religious belief, while the directive provides for an ethos

based on religion or other belief. Accordingly, Maltese regulations do not regulate an ethos

which is based on a belief that is not religious.225

Furthermore, it is worth noting that the duty t o provide reasonable accommodation only

applies in the field of employment. The provisions of the Equal Opportunities (Persons with

Disability) Act 2000 apply to the employment of employees with disabilities a nd exclude

job applicants. Therefore, all required accommodations needs to b e in place when

employment starts. Similarly, under the terms of the Equal Treatment in E mployment

RegulatiĠns 2004, issued under the EmġlĠ yment and Industrial RelatiĠns Act, ‘emġlĠyers

shall provide reasonable accommodation for pe rsons with disabilities. In particular,

employers sha ll tak e a ppropriate measures to enable a person with a disability to have

access to, participate, or advance in employment, o r to undergo training unless such

measures would impose a disproportionate burden on the employer: provided that this

burden is not disproportionate when it is sufficiently remedied by measures existing within

the framewĠrk Ġf the natiĠnal disability ġĠlicy.’ What must be keġt i n mind here is that

these measures refer to employees and do not cover job applicants, an d local law would

have been in breach of the directive were it not for the protection afforded under the

UNCRPD.226

In addition, under the Equality for Men and Women Act, any treatment based on a

provision, criterion or practice which would put people at a particular disadvantage

compared with people of the other sex or another sexual orientation, age, religion or belief,

racial or ethnic origin, gender identity, gender expression or sex characteristics is deemed

discriminatory, unless the said provision, criterion or practice is appropriate and necessary

and can be justified by objective factors unr elated to sex. It is relevan t to point out here

that, despite the extension of the definition of discrimination in 2012 to grounds other than

gender, the justification test is limited to factors unrelated to sex. It is not clear whether

the omission was accidental or deliberate. A similar exclusion is not found in the

directives.227

221 Equal Treatment of Persons Order, Article 2(2)(d).

222 Section 2.5.

223 Section 4.1.

224 Equal Treatment in Employment Regulations 2004, Article 4(2).

225 Section 4.2.

226 Section 2.6.

227 Section 2.3.