Treating doctors differently

Martin Schranz writes: I am employed as a consultant with the Maltese Health Department. It has been recently brought to my attention that other Health Department employees (foreign, but including both EU and non-EU nationals) doing the exact work as myself and with similar (or lower) levels of responsibilities, and working for the same amount of time, are given end-of-month wages that are much higher than mine and which are exempt of tax. This is on the basis that these employees have been offered different contracts to that offered to myself because of their non-Maltese (but including both EU and non-EU) citizenship. The deal they have also includes duty exemption on their cars, conditions which were never offered to myself.
Incidentally, these employees have been denied pension rights.
Can you confirm that this situation is illegal and, if so, please identify any methods of legal recourse for both myself and, if so wished, for those employees being denied pension rights?
If this situation is illegal can I terminate my employment with the Health Department without being liable to the penalties due to the Health Department for interruption of my contract?
Am I eligible for monetary compensation for the period in which I was deprived equal wages and conditions? How can I obtain this compensation?

The first issue that you raise is that you are being paid a salary that is lower than that of some other Health Department employees who are not Maltese, whether EU or non-EU nationals. This, despite the fact that you are doing the same work with similar - if not greater - responsibilities, working the same amount of time and so on. And you are also being denied tax benefits granted to the others. I will, of course, only look into this issue from an EU point of view, not on the basis of national law, which may also be applicable.

My understanding of EU law is that there is no breach of the law in this case. The reason is the following:

EU law protects EU nationals who seek work in another country from being discriminated.

This principle of non-discrimination entitles them to the same working conditions as nationals of the EU country where they go to work, typically a similar level of pay, same fiscal treatment and, generally, the same working conditions.

The rationale is that an EU citizen should not be discouraged from exercising his or her right to freedom of movement within the EU simply because of different treatment in the conditions of work. In such cases, therefore, EU law "intervenes" in order to protect you when you go to work in EU countries other than Malta.

But the principle of non-discrimination is here tied with the exercise of free movement. This means that EU law would protect you if you were working in another EU country. But it does not apply as long as you are working in Malta and have not exercised your right to free movement.

Rather than a case of discrimination, your case appears to be one of "reverse discrimination", that is, a Maltese national being treated less favourably than foreigners in his own country. Although there have been attempts to seek to apply EU law in this kind of cases of reverse discrimination, one cannot say that a clear trend has been established.

As a result, you may well be given working conditions that are less attractive than those of non-Maltese employees doing your same job. Irrespective of whether these non-Maltese are EU citizens or not.

So, as I see it, there is no breach of EU law in this case and there is therefore no remedy under EU law to redress this type of situation.

As I said, this assessment is based on EU law only. But you should also look at Maltese law, which may cover similar situations, notably in Section 27 of the Employment and Industrial Relations Act - however, that is not the remit of this column.

The second issue raised relates to foreign employees doing your same job who are denied pension rights. The situation here is different.

Although the information you provide is somewhat scant, the answer here should also be based on the above explanation with regard to free movement and non-discrimination. However, the conclusion should logically be different because in this case you refer to employees who are not Maltese but who are nevertheless EU citizens.

With respect to employees who are EU citizens, the above explanation on non-discrimination necessarily implies that these employees cannot be discriminated with respect to their pension rights and that they must therefore be granted pension rights in the same way as their Maltese counterparts. This is because they are exercising their freedom of movement by coming to Malta and as such must be protected by EU law on free movement, including the principle of non-discrimination.

Clearly, if they are getting a higher salary than you but being denied pension rights their situation may well not be as good as it sounds at face value. So my inclination would be to put the employees who are Maltese and the non-Maltese EU citizens on the same level with respect to their employment package, including pension rights. But, certainly, EU citizens doing the same job as you may not be treated less favourably than you with respect to pension or other rights.

After all, Maltese citizens are also entitled to this protection when they work in other EU countries.

With respect to non-EU citizens the above does not apply. Non-EU citizens may not rely on EU law for protection. As a result, their situation is not in breach of EU law.

As to the final two questions, the answer should also follow from my reply to the first issue. This means that since your situation does not appear to be in breach of EU law, you cannot be entitled to terminate your employment or expect compensation for the period during which you were deprived of equal wages and conditions.

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