Disability in Employment

It can be easily noted that local Employment Law favours the employee in many aspects and from various fronts. It is held at core that the employees’ health and safety at their relevant workplace shall be prioritized and protected at all times.

Personal injuries at the place of work are still a common occurrence nowadays. As published by the National Statistics Office – Malta on the 21st day of August 2020, within just the first six months of 2020 more than 1,100 employees were involved in non-fatal accidents at work and 3 employees lost their life.

While at work, it is indeed the responsibility of the employers to ensure that their employees’ health and safety are safeguarded. This is further regulated as per the Occupational Health and Safety Authority Act which furtherly created the OHSA – the Occupational Health and Safety Authority which was specifically set up to ensure that the physical, psychological and social well-being of all workers at workplaces are watched over.

The last-mentioned act specifies that the employer shall take all the necessary precautions to prevent physical and psychological occupational ill-health, injury or death. Such precautionary measures shall include:

1.  the avoidance of risk;
2. the identification of hazards associated with work;
3. the evaluation of those risks which cannot be avoided;
4. the control at source of those risks which cannot be avoided;
5. the taking of all the necessary measures to reduce as risk much as reasonably practicable, including the replacement of the hazardous by the non-hazardous or by the less hazardous;
6. giving collective protective measures priority over individual protective measures;
7. adapting the work to the worker,
8. adapting to technical progress in the interest of occupational health and safety; and
9. the development of a coherent overall prevention policy which covers technology, the organisation of work, working conditions, social relationships and the influence of factors related to the working environment.

Moreover, an employer shall ensure that at workplaces wherein a substantial number of workers are employed, there shall be a designated a person or persons to act as the Workers’ Health and Safety Representative or Representatives, and who shall be consulted in advance and in good time by the employer on matters which may affect occupational health and safety.

Furthermore, such an act goes on to state that workers shall also ensure to safeguard one’s own health and safety and that of other colleagues at workplaces. Every employee is duty-bound to co-operate with the employer and with the Health and Safety Representative/s mentioned above.

Chapter 413 – Equal Opportunities (Persons with Disability) Act states that every person with a disability shall not be discriminated against and shall be treated the same with all the fundamental rights and freedoms of the individual.

No employer shall discriminate on the grounds of disability against any of his employees with a disability in regard to:

1. procedures relative to applications for employment;
2. the hiring, promotion or dismissal of employees;
3. employee compensation;
4. job training; and
5. any other terms, conditions and privileges related to employment

In such cases, an employer is considered to have discriminated against an employee on the grounds of disability, if such employer, without any justifiable reason/s:

1. limits such a person in a way that adversely affects the opportunities or status of such a person; or
2. participates in any matter the implementation of which has the effect of subjecting such a person to discrimination; or
3. uses standards, criteria or methods of administration that have an adverse effect on the opportunities, status or benefits of such a person; or
4. fails to make reasonable accommodation for the disability of such a person; or
5. denies employment opportunities to such a person where such denial is based on the need of the employer to make alterations for the disability of such a person; or
6. uses qualification standards, employment tests, or other selection criteria that screen out or tend to screen out a person or a class of persons with a disability unless the employer can prove that the standards, tests or other selection criteria are an essential qualification or requirement for the position in question; or
7. fails to select and to administer tests concerning employment in the manner most effective to ensure that, when the test is administered to such a person and such person happens to have a disability that impairs sensory, manual or speaking skills, the results of such tests accurately reflect the skills or aptitudes of such a person.[i]

   [i] Chapter 452 – Industrial and Employment Relations Act.

     Chapter 424 – Occupational Health and Safety Authority Act.

     Chapter 413 – Equal Opportunities (Persons with Disability) Act.

     News Release – Accidents at Work: January – June 2020

This article was originally published on Malta Business Weekly on the 19th of February.