Ombudsman finds unique LSE seniority ranking system discriminatory, illegal

Setting seniority among learning support educators on the basis of academic qualifications obtained after engagement in the public service is “unlawful and discriminatory”, according to the Ombudsman.

The conclusion was reached by Education Commissioner Vincent De Gaetano following an investigation into a complaint filed by 329 LSEs in government service. The complainants alleged discrimination in the way seniority is determined within individual state schools.

The current system adopted by the Education Ministry is that educators who acquire new or higher qualifications are placed above others in seniority, regardless of length of service. This practice affects deployment and re-deployment decisions in the individual schools.

The complainants were not contesting pay progression linked to qualifications but their grievance concerned seniority only.

Evidence obtained by the commissioner showed that LSEs are the only educator grade subject to this form of seniority ranking. The system is not applied for teachers and kindergarten educators. “No written policy, circular, or legal instrument was produced to justify the practice and witnesses confirmed that it does not apply to other educator grades,” the commissioner said.

The Education Ministry did not provide a substantive reply to the commissioner's queries, citing ongoing discussions with the Malta Union of Teachers and stating that it was not in a position to express its views at that stage. The Ombudsman's investigation continued regardless.

The commissioner found that the responsibilities, duties, and working conditions of LSEs remain identical regardless of salary progression. As a result, the commissioner noted that the provision allowing higher salary scales to determine seniority was found to be inapplicable.

“The system breaches the applicable rules on seniority and treats LSEs differently from other educator grades without any objectively reasonable justification”, the commissioner said, calling it “unlawful and discriminatory”. The education commissioner concluded the complaint was “fully justified”.

The practice of determining seniority among LSEs based on qualifications rather than date of appointment amounted to maladministration in terms of the Ombudsman Act and the rules governing the public service, the commissioner added.

He recommended that this “illegal practice cease immediately”. “Seniority for LSEs at all levels of the public service must be determined strictly in accordance with the applicable provisions of the Manual on Resourcing, Policies and Procedures,” the commissioner recommended.