Discrimination at the place of work

Employment and occupation are crucial factors in ensuring equal prospects for all. They play a very important and strong role in the full participation of citizens in economic, cultural and social life and in realising their potential.

With this in mind, together with the negative consequences which discrimination can bring about, the European Community, in 2000, enacted two directives which protect European citizens from being discriminated against on grounds of race and ethnic origin, religion or belief, disability, age or sexual orientation.

These are Council Directive 2000/43 and 2000/78. Both cover employment, vocational training, pay and working conditions, and membership in organisations of workers or employers, among others.

Directive 2000/43 implements the principle of equal treatment between persons, irrespective of racial or ethnic origin. Directive 2000/78 implements the principle of equal treatment in employment and occupation, irrespective of religion or belief, disability, age or sexual orientation.

Discrimination means treating people differently, without a valid reason. In other words, discrimination means making a distinction between certain individuals or groups based on a prohibited ground.

The right to non-discrimination is a fundamental right. It is important to note that discrimination does not necessarily have to be intentional for it to be unlawful. This point is discussed in greater detail below.

Both directives distinguish between direct discrimination, and indirect discrimination.

In the context of these directives, direct discrimination occurs when persons are treated less favourably than others in a comparable situation because of their racial or ethnic origin, religion or belief, disability, age, gender or sexual orientation.

Consequently, it arises through the application of different rules to comparable situations or the application of the same rule to different situations. Direct discrimination also occurs when men and women are treated differently, among other in terms of pay, etc. It includes discrimination on the grounds of pregnancy and maternity.

However, discrimination can be much more subtle than this. The mere fact that an employer applies a particular rule to all staff does not prevent disparities from occurring. Indeed discrimination has, over time, evolved to include unequal treatment that is brought about from the operation of mere rules or policies that are not themselves apparently discriminatory in intention.

Such practice is known as indirect discrimination, which, in the context of the two directives being discussed, refers to the situation where an apparently neutral provision is liable to disadvantage a group of persons on the grounds of racial or ethnic origin, religion or belief, disability, age, gender or sexual orientation, unless objectively justified by means of a legitimate aim.

In other words as a result of indirect discrimination a particular group of employees is treated differently because an apparently neutral provision, criterion or practice determining issues, such as recruitment, pay, working conditions, dismissal, etc, in actual fact, disadvantages the members of that group or category.

Such provisions, criteria or practices are prohibited under Community Law, unless it is proven that they are justified by objective reasons.

Consequently, indirect discrimination does not occur where the provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

As suggested above, indirect discrimination is not necessarily intentional. It is usually, in fact, the outcome of mere policy.

Insofar as Malta is concerned, Legal Notice (LN) 461 of 2004, entitled 'Equal Treatment in Employment Regulations, 2004', within the Employment and Industrial Relations Act (EIRA) 2002, gives effect to the provisions of Council Directives 2000/78/EC and 2000/43/EC. As Regulations 1 (2) and (3) of this LN state:

1 (2) These regulations give effect to the relevant provisions of Council Directive 2000/78 EC and 2000/43 EC.

(3) The purpose of these regulations is to put into effect the principle of equal treatment in relation to employment by laying down minimum requirements to combat discriminatory treatment on the grounds of religion or religious belief, disability, age, sexual orientation, and racial or ethnic origin.