A bill seeking to amend Chapter 210 of the Laws of Malta, the Persons with Disability (Employment) Act, has been tabled before the House of Representatives. The bill seeks to update the provisions of the act relating to the quotas for the employment of persons with a disability and address other consequential amendments thereto.

Current obligations

Chapter 210 currently regulates several matters concerning the employment of persons with a disability, including the creation of a register of such individuals and the obligation for certain employers with more than 20 employees to employ persons with a disability based on a defined quota (currently 2% of the workforce).

If this quota is not respected, the corporation can ask that the employer pay an annual contribution of €2,400 per person with a disability who should be in employment, up to a maximum of €10,000.

On conviction, an offence under the act gives rise to a fine of up to €232.94, imprisonment or both.

Key amendments

Among other things, the bill proposes to:

  • remove the proviso which states that employees who are related to an employer by consanguinity or affinity up to the third degree are not included in the calculation of whether the employer has more than 20 employees. Therefore, going forward, it is understood that all employees, whether related or otherwise, must be considered for the purposes of such calculation;
  • strengthen the wording of the act, such that in the event of a failure to respect the quota, the competent corporation would not be empowered to ask for payment. Rather, the employer would be obliged to make an annual contribution, as determined by the corporation, of at least €2,400 per person with a disability who should be in employment, up to a maximum of €10,000;
  • eliminate the €10,000 cap for a group of companies which is duly registered with the relevant authorities;
  • empower the minister to increase the amount of contributions or maximum amounts;
  • introduce a concession for 'particular employers', such as temporary work agencies, temporary service contractors and companies with fluctuating or seasonal levels of employment. These will be entitled, for quota calculation purposes, to establish the true size of their workforce by counting a temporary employee as a fraction of one, in proportion to the number of days actually worked by such employee in the calendar year;
  • introduce a carve-out – whereby an employer which does not adhere to the relevant quota, but which can prove, to the satisfaction of the corporation, that it is offering equivalent hours of work to persons with a disability through an in-service or outsourced work arrangement or that it is actually providing work to a person with a disability who is officially employed by another employer – will be deemed to satisfy the quota;
  • clarify that recruitment efforts, work trials and discussions with entities by an employer with the aim of employing persons with a disability will not exonerate an employer from the payment of the contribution;
  • clarify that if a person with a disability resigns within one year of employment, that employee will still be considered for the purposes of determining the quota for the year in which such employment commenced; and
  • add that employees who are not registered as persons with a disability, but who are medically certified as falling within the definition of disabled, may be acknowledged by the corporation only for the purposes of an employer's quota calculation.

With regard to the penalties established under Article 29 of the act, the bill proposes to remove the imprisonment penalty and instead stipulates that a failure to pay the contribution within the time established by the corporation will be considered an offence. On conviction, a person will become liable to pay the contribution and the fine. This is to be read in conjunction with the existing Article 30, which provides that where an offence against the act or any regulations made thereunder is committed by an association of persons, every person who – when the offence was commissioned – was a director, manager, secretary or similar officer of such association, or who was purporting to act in any such capacity, will be guilty of that offence unless they prove that the offence was committed without their knowledge and that they exercised all due diligence to prevent the commission of the offence.

Comment

The bill is still being discussed at the legislative level and further amendments may therefore be implemented. Employers should keep in mind the various laws which regulate equal opportunities and persons with a disability, as well as the fiscal incentives that apply to employers which employ persons with a disability.