Racial discrimination at the workplace. Know your rights!
Discrimination refers to the act of treating someone less favourably than another, directly or indirectly, on the grounds of sex or because of family responsibilities, sexual orientation, age, religion or belief, racial or ethnic origin, or gender identity, gender expression or sex characteristics, or other characteristics, when there is no objective and reasonable justification.
Maltese legislation prohibits discrimination in employment, but labour market discrimination is still a major phenomenon. According to the European Commission against Racism and Intolerance, those most vulnerable to employment discrimination in Europe are mainly migrants from non-EU member states, Muslims, people of African descent and Black Europeans, as well as women with a minority or migrant background. These vulnerable groups also include undocumented migrants, refugees and asylum seekers.
Such racial discrimination in employment occurs both at the recruitment stage and in the workplace and can include difficulties in accessing employment due to the stereotyping of workers from different ethnic backgrounds, difficulties in acquiring the employment licences and the nature of the labour market which may not extend to allow diversified recruitment. Within employment, discrimination may include failure to provide equal pay for equal work, failure to provide appropriate benefits, failure to abide by health and safety regulations, amongst various others. Furthermore, discrimination can occur from the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. Such discrimination stifles opportunities, wastes the human talent needed for economic progress, and accentuates social tensions and inequalities. By eliminating racial discrimination in employment, we can create diverse workforces offering employers the unlimited pool of talent required for any successful business.
Current situation in Malta
Malta’s labour market in recent years has been characterised by a sharp increase in non-Maltese working in Malta. The non-Maltese workforce has been the largest contributor to growth of Malta’s labour force and has also contributed significantly to overall economic performance. Between 2017 and 2021, the non-Maltese component of the labour force exhibited the fastest average annual growth rates. Whereas the share of EU nationals remained stable at 13% of the gainfully occupied population, the share of TCNs increased from 6% in 2017 to 18% in August 2022.
As expected, the increase in non-Maltese nationals has been reflected in employment positions across all sectors. This growth has led to non-EU nationals contributing significantly to the overall percentage of non-Maltese in the labour market, which on average make up 27.9 percent of the total Maltese labour force.
Furthermore, towards the end of 2022, the top-ranking EU nationals employed in Malta originated from Italy. With regards to Third Country Nationals, the top-ranking country of origin for TCNs are those from India.
Research shows that this sharp increase of non-Maltese workers in Malta has resulted in a range of difficulties faced by such workers in Malta, including: barriers to accessing employment; underemployment and lack of job mobility; insufficient training opportunities; higher risk of poverty despite working long hours; greater health and safety risks especially among those in undeclared work; complex relationships with superiors, colleagues and clients; and low unionisation. The Covid-19 pandemic increased the vulnerability of migrants and reversed some of the progress that had been accomplished in recent years, especially in terms of social attitudes.
Furthermore, the Fundamental Rights Agency’s 2018 report ‘Being Black in the EU’ showed that 20% of respondents experienced racist harassment in the five years preceding the survey, whilst 7% suffered racist violence. Whilst this statistic is not only linked to racial discrimination at the workplace, skin colour and ethnic origin were thought to be the principal motivation for discrimination in education, prior to and once employed, and in housing. Much of the racism encountered took place in public spaces such as working areas, bars and public transport.
Knowing your rights
Discrimination in employment is prohibited by law and there are remedies available to anyone who experiences it. Maltese legislation provides protection against discrimination in employment through several pieces of legislation, namely the Employment and Industrial Relations Act (“Chapter 452”) and the Equality for Men and Women Act (“Chapter 456”), Chapters 452 and 456 of the Laws of Malta respectively. Some of their respective subsidiary legislation also addresses discrimination in employment, such as the Equal Treatment in Employment Regulations, Subsidiary Legislation 452.95 which gives effect to the European Union Directives on the subject, including the Racial Equality Directive 2000/43/EC and the Employment Equality Framework Directive 2000/78/EC.
Through these laws, it is unlawful to subject any person or group to discriminatory treatment, on the grounds of:
in relation to:
This may include the selection of a person who is less qualified than a person of the opposite sex and less favourable actions, terms of payment or remuneration (when employees are in the same class) or employment conditions. An instruction to discriminate or the failure to ensure that the workplace is free from harassment is also deemed to be a form of discrimination.
It is similarly unlawful to victimise anyone who made a complaint to the lawful authorities or for having initiated or participated in proceedings for redress on grounds of alleged breach of the provisions of Chapter 452, or for having disclosed information, confidential or otherwise, to a designated public regulating body, regarding alleged illegal or corrupt activities being committed by his employer or by persons acting in the employer’s name and interests.
Chapter 452 also sets up the Industrial Tribunal which is the main judicial body that hears cases related to employment, including issues relating to discrimination in employment. It is important to note that any cases must be brought before the Industrial Tribunal within four (4) months of the alleged breach of the law. One also has the right to request the court of civil jurisdiction to order an employer who is discriminating to desist from such unlawful behaviour and to order compensation of damages suffered through such behaviour. The National Commission for the Promotion of Equality (“NCPE”) may also hear and investigate complaints relating to discrimination in employment, but its findings are not binding unless the defendant agrees in writing to be so bound.
Another essential fact is that in cases in front of the Industrial Tribunal or the NCPE that relate to discrimination in employment (i.e., a breach of the principle of equal treatment), if the complainant establishes facts from which it may be presumed on a prima facie basis that there was less favourable treatment, then it is up to the defendant to prove that there is no breach of the principle of equal treatment or that such treatment was justified. If the defendant fails to do so, the Industrial Tribunal or NCPE shall uphold the complaint. This is different from the ordinary legal procedure, as usually it is the responsibility of the person making a claim to prove that claim and not the person defending themselves from a claim.
The shifting of the burden of proof is essential to ensure the effectiveness of anti-discrimination law. The reason for this divergence from the ordinary legal procedure is that it is particularly difficult for a person who experiences discrimination in employment to bring sufficient evidence to prove discrimination. Often the evidence required to do so would be held by the employer, the employer certainly does not advertise their prejudices or may not even be aware of them, or the employee would have very limited access to evidence to prove a discrimination claim. For instance, if an employee claims that their employer’s procedure leads to discriminatory results, it would be difficult to prove such a claim without direct access to the inner workings of that procedure.
Racial discrimination can sometimes be a crime, either on its own, such as hate speech, or else as by being the motivation for any crime. In fact, the Criminal Code, Chapter 9 of the Laws of Malta states that whosoever uses or displays threatening, abusive or insulting words or behaviour to stir up violence or hatred against a person or group on the grounds of gender, gender identity, sexual orientation, race, colour, language, ethnic origin, age, disability, religion or belief, or political or other opinion shall on conviction be liable to imprisonment for a term from 6 to 18 months. When any criminal offence is motivated wholly or in part by hatred against a person or group on the grounds mentioned above, the punishment established for such an offence shall be increased by one to two degrees.
Examples of racial discrimination at work:
Claire is black and Jane is white. Whilst handling a new procedure at work, both found it a bit difficult and made some mistakes along the way. For their mistakes, Claire is given a final written warning immediately whilst Jane was not even given a simple verbal warning. Both of their mistakes were of equal magnitude but the person who investigated the incident was biased and assumed that Claire’s mistake was due to negligence whilst Jane’s was only because this was a new procedure. This is direct discrimination.
Lucia, who’s Italian, moves to a new team at work. Two people in the team regularly talk negatively about Italy and its people in her presence and constantly circulate messages on the team’s chat in which Italians are always depicted in a bad light and on many occasions these were sent directly to her. Lucia finds this constant hostile behaviour degrading and feels humiliated. When she complains, the employer does not take it seriously and says people are only joking. Lucia argued that this is not a one-time thing and showed the employer 20 examples of degrading behaviour in only the preceding week, but the employer again dismissed this as “just jokes”. Lucia may institute a claim of discrimination due to the neglect of the employer to suppress any form of harassment at the workplace.
Options for redress:
If you believe that you are a victim of discrimination, you have a right to speak up or make a complaint to the following authorities:
Industrial Tribunal: Should you experience discrimination in employment, a complaint can be presented to the Industrial Tribunal. A case before the Tribunal must be presented by means of a referral in writing consisting of a declaration stating the facts of the case. The referral must be presented in the Registry of the Tribunal at the Maltese Law Courts within four months from the effective date of the alleged breach.
Further information relating to employment conditions can be given by the Department for Industrial and Employment Relations.
Telephone:
NCPE: Anyone who believes that they have been a victim of discrimination can submit a complaint to the NCPE by filling in the form through the link here.
Further information can be given by the National Commission for the Promotion of Equality on Tel: 2276 8200 Email: [email protected].
Police: If a person is the victim of hate speech or any other crime motivated by hate due to race or any other ground, they then require the assistance of the police. Should a person require Police assistance in relation to a non-emergency case, one may call the Police Command and Control room via (+356) 2122 4001-9. Local Police stations may be reached either via telephone number (+356) 2122 4001, via e-mail [email protected], or by physically going to the Police station.
Human Rights Directorate: The Directorate can provide generic information on what the law provides on discrimination and can assist persons in seeking the necessary services to obtain remedies in discrimination cases. Tel: 2226 3210 Email: [email protected]
The information is supported by Human Rights Directorate together with the Malta Tourism Authority.
References:
Art. 2(1) of the Equality for Men and Women, Chapter 456 of the Laws of Malta.
European Commission against Racism and Intolerance. (2015). ECRI General Policy Recommendation No. 15 on Combating Hate Speech, p. 14. https://rm.coe.int/ecri-general-policy-recommendation-no-15-on-combating-hate-speech/16808b5b01
European Network Against Racism (ENAR). (2022). Introduction, para. 2
https://www.enar-eu.org/Introduction-1301
Combatting racism and racial discrimination in employment: ECRI General Policy Recommendation No. 14: Key Topics https://rm.coe.int/ecri-general-policy-recommendation-no-14-key-topics-combating-racism-a/16808b763d
Jobsplus, Foreign Nationals Employment Trends. (2023).
Fundamental Rights Agency (2018). Being Black in the EU. Second European Union Minorities and Discrimination Survey. Retrieved from https://fra.europa.eu/sites/default/ files/fra_uploads/fra-2019-being-black-in-the-eu-summary_en.pdf
Arts 26 and 27 of the Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta; Regs 1-3 of the Equal Treatment in Employment Regulations, S.L. 452.95.
Reg. 3, S.L. 452.95.
Art. 27, Cap. 452.
Art. 30, Cap. 452 and Reg. 10, S.L. 452.95.
Reg. 10(2), S.L. 452.95.
Arts. 17-18, Cap. 456.
Art. 19(2), Cap. 456 and Reg. 10(3), S.L. 452.95.
Art. 82A, Criminal Code, Chapter 9 of the Laws of Malta.
Art. 83B, Criminal Code, Chapter 9 of the Laws of Malta.