Recently, the Malta Union of Teachers (MUT), in defence of its members, and later other unions, objected to what seems to have been a confidential document prepared by the local Church authorities in relation to the management of its schools.

The MUT’s press release said: “Reportedly the said confidential document will preclude staff members who ‘do not adhere in their substantive life choices to the teachings of the Catholic Church’ from being selected to top school posts as well as other identified positions. Worse still, the document reportedly makes it incumbent upon the individual employee to self-report if he or she enters into such life choices and also invites prying into the private lives of Church school employees.

“Employment by the Church in Malta is governed by Maltese law, which clearly does not allow for such odious distinctions to regulate the selection or promotion of employees.

Should it be discriminatory for a school to decline to employ as a teacher of religion a self-declared atheist?

“The Malta Union of Teachers will not endorse such a document, which blatantly goes counter to Maltese employment laws and practices and defies the most basic and fundamental human rights, such as the right to privacy, the right to family life, inclusion and equality.”

I would like to share some views on the employment aspect of these statements. While fully endorsing the “right to privacy, the right to family life, inclusion and equality”, no right is absolute, except, in my view, the right to life.

Whereas discriminatory treatment, in terms of our employment legislation, is prohibited, even this is not absolute. So much so that Chapter 452 of the Laws of Malta defines discriminatory treatment as any distinction, exclusion or restriction which is not justifiable in a democratic society, including discrimination based on marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership in a trade union or in an employers’ association.

Hence, is it legitimate to argue that as long as the distinction, exclusion or restriction is justifiable in a democratic society, then such treatment is not illegal. The law itself allows, and rightly so, room for instances when it may be justifiable for an employer to discriminate or distinguish. The law does that because the obligation not to discriminate is not absolute – there may be instances where and when it may be justifiable to discriminate. An absolute non-discrimination rule would be unworkable in practical terms.

I shall not delve into case law, local or foreign, to avoid the trap of being too academic, but I shall share some examples, all within a Maltese context, to illustrate the point I wish to make. For example: Should it be deemed discriminatory for a trade union to decline an application for employment by a person who has continuously, regularly, publicly and visibly advocated against employees joining trade unions?

Should it be discriminatory for a Maltese hospital, private or government-owned, to decline to employ in its maternity unit a doctor who advocates, writes and publicly campaigns in favour of abortion?

Should it be discriminatory for a school to decline to employ as a teacher of religion a self-declared atheist?

Should it be deemed discriminatory and illegal for an NGO advocating against bird hunting to decline to employ a person who is a registered bird trapper or hunter?

Should it be deemed discriminatory and illegal for the Jesuit Refugee Service (JRS), to decline to employ a person who has publicly advocated against the integration of irregular migrants within our society?

Hence, one really ought to consider what is and what is not justifiable in a democratic society. Each case will have its own merits, of course, and hence the test is to be applied on a case-by-case basis. There is however no doubt that the test should also take into consideration other issues, including objective considerations, legitimate aims and the principle of proportionality.

As far as the objective considerations are concerned, should we not consider that in Malta, we have State and private schools as well as Church schools? As much as one should not expect the Church to interfere in the way State or private schools are administered and managed, why should the Church not be allowed to administer and manage its own schools as it deems fit in line with its teachings?

There must be a legitimate aim, which should be a real, objective one, and not in itself discriminatory. Hence, before jumping to conclusions on whether a policy or decision or position is discriminatory, why not examine the legitimate aim of the person or organisation formulating the policy or taking the decision?

If the legitimate aim of Church schools is that of providing educational services within a religious ambience, where parents freely opt to send their children, why should one consider the position proposed by the Church as discriminatory?

Based mainly on EU law, a ‘proportionate’ decision implies that this should be appropriate and (reasonably) necessary. Given that a discriminatory treatment needs to be (reasonably) necessary, the employer, service provider, etc. should consider whether proportionate alternative measures could fulfil the aim without causing such a discriminatory effect. If they could do so, then it may well be unjustified to adopt the more discriminatory measures.

My sincere advice to all, humbly but as a professional who has furthered studies in employment legislation, is not to jump to conclusions hastily, to take all factors into consideration and apply the law as it should be applied, in the best interests of all the parties concerned. At times, to discriminate, within the right context and with a justifiable reason within our democratic society, is a necessity beneficial to all.

Ian Spiteri Bailey is a director of Objective HR

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