Discrimination at the place of work

During the recent launch of the campaign For Diversity - Against Discrimination, intended to combat the different roots of discrimination at work, the Minister for Social Solidarity, Dolores Cristina, is quoted to have stated that it is important that Maltese employees were not only legally protected against discrimination but that they were also informed of their rights at law.

Having delved into these issues throughout the course of my studies and having professionally practised employment law for the past 10 years I thought of sharing some thoughts on the issue of "discrimination at work".

The concepts of diversity and discrimination go hand in hand. Where there exists diversity, there is bound to be discrimination issues. Not least in the labour market. In Malta, where more and more immigrants seek refugee status with a right to work in Malta and where the possibility of having EU nationals working in Malta is now a reality, diversity at the place of work is increasing - and, thus, also the potential of having discrimination at the place of work.

The issue of discrimination has long been on the EU's agenda. The results have been satisfactory at times but less than acceptable at others. So much so that, in May this year, the Commission issued a Green Paper entitled Equality and Non-Discrimination in an Enlarged EU. It outlines the steps that the EU has already taken to ban discrimination in employment and proposes a range of political measures that could support national authorities, civil societies and other institutions in combating discrimination.

Two very important pieces of EU legislation in this regard are (1) the Council Directive 2000/43 of June 29, 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, laying down the framework for combating discrimination on the grounds of racial or ethnic origin and (2) the Council Directive 2000/78 of November 27, 2000, establishing a general framework for equal treatment in employment and occupation to combat discrimination on the grounds of religion, belief, disability, age or sexual orientation.

In either of the two cases, as is practice in the EU, the principle of equal treatment means that there shall be no direct or indirect discrimination based on any of the mentioned grounds.

Both these directives have been given effect under Maltese law in terms of Legal Notice 297/2003.

But these are not the only pieces of Maltese labour legislation that have provided the employees with the necessary tools to combat discrimination. Recent legislation on part-timers, fixed-term contracts of employment, disability issues, young workers, redundant workers, gender issues and so many others have all provided a great deal of protection to employees against discrimination of some sort or other.

Throughout my practice in employment law, I have come across various instances of discrimination with employees for one reason or another.

Particularly within the context of discrimination, I do consider "job-seekers" to be workers. Sex- and age-related "excuses" are at the forefront of the reasons for discrimination. Many are those women and 45+ persons who complain to have been discriminated against simply because of their sex or age. Confronted with this complaint, many are those employers who state unequivocally and without any sense of guilt that they have not employed A or B simply because "she is getting married next year" or because "at the age of 43, he is not fit for my request". People refrain to take judicial action, preferring to concentrate their energy and time seeking employment elsewhere. Some even argue that "I will not take legal action because I will be blacklisted".

We still come across employers who identify the political belief of a prospective employee prior to engaging him or her. Other very sad instances of discrimination are those regarding disabled persons.

Workers are sometimes discriminated against simply because they work on a part-time basis, on a definite contract of employment or have some other form of a-typical working relationship. The laws today provide for adequate protection even in this respect.

Political discrimination, as well as discrimination based on sex, are also common in Malta. Although very few, our Industrial Tribunal has also dealt with cases where issues of discrimination based on religious belief have had to be decided upon.

Discrimination at work is not only an issue of the private sector. It exists also in government departments, corporations, authorities and/or agencies which are government-owned. The government should set the example.

The problem remains one - the law is there, protection is afforded - but how ready are employees to make use of these laws to safeguard their rights? Employees should know one further right they have - if they are maltreated by their employers simply because they have filed some legal action on the basis of alleged discrimination that too is also protected by law.

In the meantime, much remains to be done. Educating remains a first priority. Employers should know their obligations at law. Employees should get to know their statutory rights and should seek professional help. Unions should be better geared and prepared to help their members when allegations of discrimination seem sound and possible to prove. Collective agreements should include clauses that reflect the law. This makes these rights and obligations better known to everybody. Finally, the tribunals and the courts should deal with these cases in such a way so as to make the law user-friendly and a source of deterrent rather than a source of redress.

This, I believe, is the way forward to fighting discrimination at the place of work which, after all, does nothing but diminish the worker's dignity and integrity in this day and age.

sbailey@euroweb.net.mt