Discrimination is the difference in treatment of the same situation

In Mark Muscat -v- HSBC Bank Malta plc, the First Hall of the Civil Courts held that when one alleges discrimination, then one must prove that there is a difference in how one is treated in the same or similar circumstances. This was held in a judgement delivered on 5 December 2015 by Mr Justice Silvio Meli.

In his application, Mark Muscat, explained that he was employed as a Private Claims Manager at the bank, but also was the Malta Union of Bank Employees (MUBE) representative of the clerical and managers of the bank within the Wealth Management department. On 24 September 2012, the Union ordered a strike for the employees in the Wealth Management department on the threat to change the conditions of employment of these employees.

When the strike took place, he left the office building but by mistake left his briefcase in the garage. He noticed this two weeks after, and when he returned, he informed his superiors. The CCTVs did not shed any light. As a consequence, Muscat faced disciplinary action for negligence and not following the bank’s procedure. These proceedings were done in bad faith and in breach of the collective agreement.

Muscat also claimed that he benefits from immunity in terms of the Employment and Industrial Relations Act, but all the same the bank asked him not to return to work. Muscat asked the Court to declare that he is subject to the legal immunity and to declare that the disciplinary proceedings were held in bad faith and to order the bank to allow him to return to work.

The bank filed a statement of defence stating that the disciplinary proceedings are done by an independent board.

Mr Justice Meli analysed the evidence brought before him. It was proved that the briefcase which was lost contained a list of clients with their information. Muscat had explained that he was under the impression that he left the briefcase in his office, but it resulted that he had taken it to the garage and left it where he had parked his car.

The Court pointed out that this case dealt with whether the bank could take disciplinary action against the plaintiff Muscat. The Court held that from the evidence produced there is no connection between the strike and the disciplinary procedure. The fact that Muscat lost his briefcase had no bearing on the industrial action. Article 63 of the Employment & Industrial Relations Act, gives protection to a trade unionist against damages in case when there is industrial action.

On the other hand the bank presented manuals and documents which state that staff are prohibited from removing from the bank premises any information of its clients. It resulted that the plaintiff did take out a list of clients without permission. This could have prejudiced the bank since the information was private and sensitive.

The Court held that the bank was justified in taking disciplinary action and this was in accordance with the collective agreement. However, these proceedings were halted when a warrant of prohibitory injunction was issued. The plaintiff alleged that he was subject to discrimination. Therefore, it was up to the plaintiff to show that he was treated differently from similar cases. From the evidence produced the Court did not find any examples of how the bank acted in similar situations as that of Muscat.

The court referred to a judgement Tarek Mohammed Ibrahim v Deputy Prime Minister et decided on 5th April 2011, which held that what has to be shown in discrimination is the different treatment. There are two elements, the first that a person is not treated in the same manner as another person in the same circumstances. There may be a comparison between who suffers a disadvantage and who receives an advantage.

The bank rejected the claim that it intended to dismiss Muscat. A report on the loss of the briefcase was drawn up by a bank official who presented it to the human resources department, which then issued the disciplinary charges. The composition of the disciplinary board included an MUBE member. The Court then moved to dismiss Muscat’s claims.

Dr Malcolm Mifsud

Partner - Mifsud & Mifsud Advocates