INTERVIEW | Wednesday, 19 December 2007

Protecting staff against discrimination: Who Cares?

One may argue that now that EU legislation regulates a lot more HR policies and practices than before, old school people management practices will disappear and the protection of workers’ rights will come about automatically. This argument holds no water. Enforcement alone will do very little to catalyse culture change in managerial processes – and who is to say that EU laws also protect employers’ interests anyway? Quizzing National Commission for the Promotion of Equality Executive Director Sina Bugeja, David Darmanin finds out

What were your initial reactions when you were approached to fill in the post of Executive Director of the NCPE before it was formed in January 2004?
I found the idea to be very enticing because commissions set up prior to the NCPE were on an advisory basis whereas this is one has an executive role.

You have held a variety of public posts in different sectors. How do you feel this position relates to what you have previously done at Sedqa, The National AIDS committee and the World Health Organisation?
Whichever way you look at it, the work I do has always been related to the social field. For some reason I have always found myself dealing with discrimination. My membership in Soroptimist International of Malta for example, has helped me take an active role in dealing with women’s rights. That said, the NCPE deals with discrimination in general, be it against men or women. I have never seen or thought of women that need to be championed when I work on cases of discrimination. I deal with people, irrespective of their gender.

Would you not agree that the world of employment is male dominated, and that it is more likely for women to be discriminated against?
I agree that this is the situation, but I do not necessarily agree that this is how it should be. Even from a traditionalistic point of view, women in history have always been working – all we should do is have a look at how farming was carried out before the war. In any case, we do not only receive complaints from women – you’d be surprised at the count of men who suffer from harassment at work places. At the NCPE there is space for the dignity of every individual. This is a place where we talk to both genders.

What were the initial objectives of the NCPE and where is it now? What is the structure like?
The commission’s initial remit is spelt out in the Equality for Men and Women Act published in December 2003. The main points of our remit essentially qualified the NCPE as the over-all responsible body for gender equality – and that it must therefore ensure that the law is being adhered to, that information related to the policy is effectively disseminated, that methods of preventing gender discrimination are drawn out and implemented, that victims of gender discrimination are assisted and protected and that ultimately all efforts are dedicated towards the final aim of ousting out gender discrimination. Last April, the publication of a legal notice has also added on to our remit the responsibility of racial discrimination. Discrimination in relation to employment however, is dealt with by the Department of Employment and Industrial Relations. When it comes to racial discrimination, we are responsible for incidents related to social disadvantages, education, goods and services. The NCPE, ultimately, is now an equality body in the wider sense, not just dealing with gender equality. The NCPE board is made up of the Commissioner and six members, occupying the position on a two-year term basis. Basing its work in strict adherence to its remit, the Commission plans its own priorities and translates them into measurable targets and concrete action plans. This process of course entails the comparison of Malta to other EU members states while respecting the fact that we have our own identity and cultural attitudes. What other countries do is important but not sacrosanct.

Surely, your initial stages must have been difficult since you had to start from scratch. How did you get the project off the ground?
We had started by taking a close look at gender and family issues related to the employment of females of child bearing years, where discrimination is widely diffused. Besides making ourselves known with potential victims and facilitating the process of their approaching us with complaints, we have also made sure to work directly with employers – be it by direct contact or by distribution of publications we have issued. After taking a feel of the situation at hand, we had started applying for EU funds in order to promote effective policy direction based on scientific evidence. Another thing that was desperately needed was official research since there was hardly anything to base our decisions on at the time. The publications we had at hand were not directly related to gender discrimination and if any, there was very little anecdotal evidence. We had therefore embarked on a series of projects to set a baseline with concrete information. This process also took into consideration the complaints on gender discrimination received by the commission which served to indicate what was being defined as problematic.

Some employers argue that recruiting a female of child bearing age may potentially increase their personnel overheads to a point where it ceases to be feasible, where employing and training a substitute for a temporary period would be not only costly but difficult to find. Do you see their point?
I see their point but it is the whole frame of mind and employment philosophy that needs to be rethought. Many employers have been through this change process and have found their business to be more successful and lucrative because of the adoption of family friendly measures at work. Before deciding to recruit people, employers will calculate how much money the resource will cost and how much are they likely to take back over the span of their expected term of employment. In this process, some employers will consider the possibility of pregnancy as a stumbling block and if I may, I think that this is a short-sighted approach. We are perhaps forgetting the likely possibility of increased loyalty and performance of employees whose bosses are sensitive to family needs. We are slowly moving towards alternative work arrangements that are aimed at providing a better work-life balance. Maternity issues are sometimes blown out of proportion. In the HR world, we are heading towards a culture change with which parenthood should not even be an issue. Without jumping to any conclusions, why not put forward an idea on the table wherein we discuss the possibility of some joint funding for SMEs where through a contributory approach, financing will be made available to be better prepared for this change? Irrespective of the illegality of it all, discriminating against females of child bearing age is working against employers themselves. Let us not forget that 57% of our university educated population is female. By pushing parents out of the game, employers are missing out on employing valid and qualified individuals.

Besides refusing to employ on grounds of gender or age, in what other ways would people discriminate in work places? Can you mention a few examples?
I remember a case where an internal vacancy had arisen for a senior position which two colleagues – one male and another female - were the most likely candidates to fill in. The position was taken by the male candidate on the grounds that the female could possibly become pregnant and was therefore automatically excluded. In a separate case, we had two colleagues – a male and a female, with the same job description and the same exact qualifications. For some reason, the male was on a better salary package. We had another case of a company that actually made an allowance for tele-working. Because a male employee was undergoing a serious family problem, he applied for work from home for a period of time. He had been refused the possibility on the grounds that tele-work was an option available to female employees exclusively.

What are your views on the HR culture in Malta? Do you think that in general, Maltese employers adopt good practice when it comes to people management?
We’re on our way there. Policies related to Human Resources are already improving and things are looking up in general. As a country, we are becoming aware that if we don’t take care of our human resources, we are bound to lose a spoke in the wheel. Employers are realising that for people to perform, they need to be happy – possibly in an environment that is sensitive to individual needs, where an atmosphere enabling the potential for production is created. So yes, in general I would say that Human Resource issues are now on our agendas. That said, this is just the beginning and there is more to be done. Adopting effective HR policies may result in a very costly exercise, and this is why I feel that SMEs need to be helped. A collaborative approach between companies may also be ideal, I don’t know, perhaps having certain companies share the cost of a common HR consultant. We must also look into training decision makers and policy setters. This is key, especially within family run businesses.

What is the NCPE doing in order to encourage this culture change? Don’t you feel that with law enforcement you are pushing a culture change rather than promoting it?
The NCPE is all about catalysing this culture change. All of our operation is ultimately aimed at that. We are not an authority that aims to look into enforcement only. We have the ultimate goal of changing the way people think in terms of an alleged difference in men’s and women’s rights, or that of people of a different race or sexual orientation. In most circumstances, with a simple letter or light negotiation, issues are immediately resolved. Some other times legal action is inevitable, especially when pride was involved, or when the employer would find it difficult to revert a wrong decision. We are aware of the idea that an employer might think of us as an interference rather than as an eye-opener. In any case, we much prefer a collaborative approach rather than an antagonistic one. There was once a situation where we had to resort to filing a suit in the industrial tribunal, but we eventually settled for an amicable out of court agreement.

Is it not difficult to prove that an employer is discriminating on grounds of gender or sexual orientation? Wouldn’t it be a matter of the employer’s word against the employee’s?
Proving discrimination is not easy at all. Besides, we also have to be objective and unbiased in our investigations, so we cannot assume that if there is a complaint there is discrimination automatically. This is why investigations are carried out in the first place. By observing the modus operandi of a particular work place on different levels one would already have an indication of whether discrimination is likely to take place. In a particular situation we saw that sexual harassment in a particular workplace was the norm. Although very common, a lot of staff members were extremely unhappy with the situation. In this particular case, anyone including management was likely to be affected - some managers were actually being sexually harassed by their subordinates. We intervened by helping them out with the implementation of an effective policy and offer training – aiming to put an end to the situation. We have also helped out the Armed Forces to set up an effective policy that prevents sexual harassment at work. We found this to be very smooth flowing since all the parties involved where extremely open to change and co-operative. The Commissioner of the NCPE is ultimately empowered to pass on cases to the Commissioner of the Police to carry on investigations once an offence has been established. Of course, this option would only be used in particular circumstances. Furthermore, in cases of discrimination the onus of proof is reversed. This means that it is not the alleged victim who has to prove that discrimination has taken place, but the alleged perpetrator to prove that it hasn’t.

We have discussed culture change and a change in attitude, and established that this is key to improve the situation. Tangibly, have you seen any improvements so far?
I’ve seen major improvements. There is definitely much more awareness, and although there is more to be done, I feel that we’re on the right track. The fact that the situation improved does not mean that we are receiving less complaints – but receiving more complaints is actually indicative of an increase in awareness. People are finding the courage to complain if they are discriminated against – only because they know that discrimination is simply not on, whereas perhaps before, a lot more people would grin and bear it. To be fair, the credit for the progress we’re witnessing is not all due to the NCPE. Equality is on the national agenda. Legislation, education and the media are all pulling one rope.

Don’t you think that fear of losing one’s job may hinder victims of discrimination to complain? Besides, with Malta being such a small country, wouldn’t victims be afraid of their current employers’ mudslinging with prospective employers – and therefore reducing their chances of finding alternative employment?
That a victim of discrimination needs to become empowered to find the courage to complain is a fact. What is positive is that the law provides for victimisation and protects people against it. Let me elaborate. If a victim files a complaint against an employer, and the employee is in turn victimised because of having filed a complaint, it makes it easier for an employee to prove the situation because there would already be a previous complaint to fall back on. Malta’s size, and the speed with which information travels does not help, however, employers with a bad track record would be equally known by future prospective employees. Accusations against particular employees are made less credible when they come from people with a bad reputation already.

How has the NCPE benefited from EU funds?
EU funds were mostly used to put our message forward – and this has been done to the best of our ability. We have just been given the green light to carry out the fourteenth project using EU funds. We have made use of both structural funds as well as proposals open to restricted calls – for which only commissions like ours can apply. We currently have six or seven EU projects running and the grants received from such projects run into millions of Euros when you count them all together. Because of the high activity of EU projects, our operation has now developed into two main sections. There is our core operation, which is fully funded by the Maltese government. Then there is the application of awareness raising, research and other initiatives – which would all be co-funded by the EU.

What are your plans for the immediate future?
The operation of the commission works in phases, with the current phase coming to an end towards January or February of 2008. We already have a few ideas of what will come after that. We are currently conducting research looking at certain laws and how they are affecting the gender perspective and from this research we want to push policy direction. We want to bring these laws to the attention of different authorities and put them forward in a series of high-level discussions and later for policy decisions. That way, we would be able to change policy by means of better legislation. Also on the cards is the creation of a process aimed at creating a national gender balance, especially in employment. We need to see more women working and more women occupying senior positions.

How do you envisage equality in work places in say, ten years’ time?
If we keep the current momentum we should be able to move forward substantially in ten years’ time. We should be looking at a country with a higher percentage of females in work places, at more women with an equal opportunity of climbing the ladder to occupy certain positions and at better work practices in the private sector. In the tourism industry for example, managers are expected to work 16 hours a day – thus hindering a decent work-life balance. This type of demand in this industry automatically excludes the option of having your own time to invest in building up a family. My question is – what will it take to employ two people to carry out a job that requires a 16-hour per day effort? I am confident that in the near future questions like these will be answered, addressed and rendered obsolete.