Employers seek access to information on disabled employees

A proposed legal change in the Employment and Training Services Act could give employers access to information about their employees who have a disability.

Employment and Training Corporation chairman Clyde Caruana said the proposal would be discussed and a decision taken following consultation in the coming months.

Under the current law, drafted in 1990, employers are not permitted to know the identity of employees who are registered with the ETC or with the National Commission Persons with Disability (KNPD) as having a disability.

“The proposal is one of the many proposed changes to the act, which has remained the same for a relatively long time,” Caruana told MaltaToday. 

He explained that under the proposal, employers could request a list of names of employees under their charge who were registered with either the ETC or with KNPD as having a disability. He stressed that this list would not be available prior to the recruitment of new employees. 

“The employees in question will be asked whether they want this data to be issued, and they may refuse to have their names given out,” Caruana said, adding that should this measure be accepted, then more stress would be placed on safeguarding these employees from potential discrimination.

“Those with a disability are already protected by the Equal Opportunities Act, but further safeguards would probably all be a part of the revised law,” he said. 

It is also worth noting that Malta has also signed the United Nations Convention on the Rights of Persons with a Disability, which prohibits discrimination on the basis of disability “with regard to matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions,” and which ultimately gives more purport to these safeguards. 

Expressing his own opinion, KNPD chairman Oliver Scicluna said that the disability commission had not yet formulated an official response. However, he explained that as someone with a disability himself, he would not feel comfortable with such data being made available.

“We have already spoken about the issue with ETC and we will be part of the discussion until the final decision is taken,” he said, urging organisations in the sector to express their opinions. 

“It’s people who run these organisations that can truly speak to defend and emphasise the rights of people with a disability, as they come in direct contact with these realities,” Scicluna added. 

Discussing the possibility of opting out of giving this data, Scicluna expressed concern about the fact that a reluctance to make the data available might automatically single out persons and risk discrimination against them. 

Reiterating the fact that he wasn’t speaking for all of the commission, Scicluna said that the matter required extensive discussion and consultation.

Asked for the reasons behind this proposal, ETC chairman Clyde Caruana said that many employers had quoted concerns about health and safety issues. 

“Employees are the responsibility of their employers, so if they have a disability that is potentially dangerous to themselves or to others, employers feel they ought to know about it,” he said. 

However, it would be reasonable to object, that unless someone’s disability affects their job performance, then ultimately it shouldn’t be anyone’s business but their own, whether or not they are registered as having a disability. 

Caruana said that many might disagree with the change or perhaps even consider it controversial, but ultimately it was a way to reach a compromise, given the resistance to the government’s decision to enforce a law that 2% of the workforce of companies employing over 20 people must be people with a disability.

The director general of the Malta Employers Association, Joe Farrugia, explained that employers had made the suggestion because they could never really verify whether or not they were fulfilling the quota as required.

Asked whether it would be enough to know the number of employees with a disability, Farrugia said that knowing the identity of the people in question was important ultimately “as a source of proof”.

“Say an employer is taken to court for not observing the quota, for instance,” he explained. “How can employers defend themselves unless they know the identity of the people in question?”

Farrugia added that whether a person was registered as having a disability or not, was up to the person in question.

“If a person who clearly has a disability isn’t registered as such, then employers might mistakenly think they fulfil the quota when they don’t,” he said, explaining that the measure would therefore help to bring more clarity to employers.