Navigating Employee Rights Under Maltese Law
Navigating Employee Rights Under Maltese Law
Employment relationships play a vital role in shaping individuals’ livelihoods, well-being and overall quality of life. As mental health protection is receiving increasing attention, it has become crucial for both employers and employees to have a clear understanding of the rights and protection afforded to employees under Maltese law. This understanding not only ensures equitable treatment but also cultivates a harmonious work environment and fosters a culture characterised by respect and dignity.
Sources of Maltese Employment Law
The Employment and Industrial Relations Act (hereinafter referred to as the ‘EIRA’), Chapter 452 of the Laws of Malta, serves as the main source of Maltese employment law. The EIRA provides the basic legal framework, regulating the main conditions of employment in Malta. Specific areas of employment law are in turn regulated by various subsidiary legislations promulgated under the EIRA, as the latter transposed several directives of the European Union.
There are additional sources of Maltese employment law apart from the EIRA, encompassing various legislations, that prioritize the welfare of employees. One notable example is the Occupational Health and Safety Act, which introduces the Occupational Health and Safety Authority (referred to as ‘OHSA’). The primary role of OHSA is to uphold and advance the physical, psychological and social well-being of all workers across diverse workplaces. Additionally, the Employment and Training Services Act, Chapter 594 of the Laws of Malta, governs employment and training services while establishing the esteemed entities known as the National Employment Authority and Jobsplus.
Championing Equality: Malta’s Comprehensive Anti-Discrimination Laws
The concept and fundamental principle of equality and non-discrimination have deep roots in Maltese legislation, tracing back to the inception of the 1964 Constitution of Malta. Building upon this foundation, Malta enacted the European Convention Act, Chapter 319 of the Laws of Malta, in 1987. Article 14 of this Act explicitly guarantees the enforcement of rights protected by the European Convention within the jurisdiction of the Maltese courts. This provision directly relates to the enjoyment of fundamental rights and freedoms in relation to discrimination, as articulated in the Convention.
Maltese employment law seeks to protect all types of employees, whether they are classified as employed or self-employed. By virtue of Article 2 of the EIRA, a worker is classified as an employee if such worker has entered works under a contract of service or has undertaken personally to execute any work or service for and under the immediate direction and control of another person, including an outworker. However, any work or service performed by a person in a professional capacity or in the capacity of a contractor for another person when such work or service is not regulated by a specific contract of service is excluded from the definition of an employee under the EIRA.
Article 26 of the EIRA aims to safeguard current and prospective employees from discriminatory treatment in the workplace. The EIRA defines “discriminatory treatment” as any distinction, exclusion or restriction which is not justifiable in a democratic society including discrimination made on the basis of marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership in a trade union or in an employers’ association. If an employee believes that they have experienced discrimination in their employment, which may have resulted in their dismissal, they have the right to file a complaint with the Industrial Tribunal within four months of the alleged breach. The Industrial Tribunal shall then investigate and determine whether the aggrieved employee should be awarded compensation for any loss or damages they have suffered.
The EIRA also provides a non-exhaustive list of what constitutes discriminatory treatment by stating that it includes (a) the engaging or selection of a person who is less qualified than a person of the opposite sex, unless the employer can prove that the action was based on acceptable grounds related to the nature of the work or on grounds related to previous work performance and experience; (b) actions which apply to an employee, terms of payment or employment conditions that are less favourable than those applied to an employee in the same work or work of equal value, on the basis of discriminatory treatment; (c) actions whereby the employer knowingly manages to work, distributes tasks or otherwise arranges the working conditions so that an employee is assigned a clearly less favourable status.
The EIRA also provides that employees within the same class of employment should receive equal remuneration for work of equal value. This means that employees who perform comparable roles should be entitled to the same rate of pay. However, employers and employees, through negotiations for a collective agreement, may agree on different salary scales, annual increments and other employment conditions for employees hired at different times. These differing scales should have a maximum limit that is reached within a specified period. It is crucial to ensure that any distinctions between classes of employment are not based on discriminatory treatment, as this would be deemed null and void in terms of law.
Victimisation and harassment are also made unlawful in terms of the EIRA. In terms of Article 28 of the EIRA, it is unlawful to subject any person to victimisation for making a complaint to the authorities or for having initiated or for participated in proceedings for redress on grounds of alleged breach of the provisions of this Act, or for having disclosed information, confidential or otherwise, to a designated public regulating body, regarding alleged illegal or corrupt activities being committed by his employer or by persons acting in the employer’s name and interests. Furthermore, Article 29 prohibits an employer or an employee to engage in any form of harassment towards another employee or employer. This includes any unwelcome acts, requests or conduct, such as spoken words, gestures, or the production, display or circulation of written words, pictures or other material. Harassment based on sexual discrimination is strictly forbidden and should be deemed offensive, humiliating or intimidating to the person affected. This legal provision emphasised the significance of maintaining a workplace free from harassment and promotes an atmosphere of dignity, equality and mutual respect for all employees.
Safeguards Against Unfair Dismissal
In terms of the EIRA, employees in Malta are protected from unfair dismissal. The Act stipulates that an employer can only terminate a fixed term contract before the agreed upon time or an indefinite contract if there is good and sufficient cause. If an employer terminates an unexpired fixed term contract without good and sufficient cause, the employee is entitled to receive half of the wages they would have received for the remaining agreed-upon period. In the case of an indefinite contract, the employee has the right to seek reinstatement, re-engagement or compensation through the Industrial Tribunal. Although the EIRA does not explicitly refer to constructive dismissal, contrary to the UK’s Employment Rights Act of 1996 which mentions constructive dismissal in Article 95, the concept of constructive dismissal has been recognised by both the Industrial Tribunal and the Maltese Courts.
In situations where an employer terminates an employment contract based on ground of good and sufficient cause, it becomes crucial for the employer to substantiate such claims, particularly where there are no prior disciplinary warnings, either verbal or written, issued by the employer to the employee leading up to the dismissal. The employer must effectively demonstrate that the dismissal was justified on valid and substantial grounds as, similarly to English law, Maltese law places the burden of proof on the employer, who must establish that the dismissal was not unfair. Failure to meet this burden of proof will result in the Industrial Tribunal ruling in favour of the employee, who shall then only be required to prove that he/ she has been dismissed. Nevertheless, in cases of constructive dismissal, the employee faces a more challenging burden of proof, as he / she must demonstrate that their resignation was, in fact, an unfair dismissal.
The term “good and sufficient cause” is not specifically defined under Maltese law, leaving its determination to be assessed on a case-by-case basis. Article 36 (14) of the EIRA, however, outlines certain situations which may not be construed as constituting a good and sufficient cause, namely that:
- The employee is or becomes a member of a trade union;
- The employee no longer enjoys the employer’s confidence, except in the case of a private domestic employee.
- The employee gets married;
- The employee is pregnant or is absent from work during maternity leave;
- The employee discloses information, whether confidential or otherwise, to a designated public regulatory body, regarding alleged illegal or corrupt activities being committed by his employer or by persons acting on the employer’s name and interests;
- The employee has filed a compliant or is participating in proceedings against the employer involving alleged violation of laws or regulations or is having recourse to competent administrative authorities;
- That the business with which the employee is engaged has undergone a transfer of ownership unless it is a case of redundancy.
The Industrial Tribunal has emphasised, in various cases, the requirement for rigorous proof when asserting a claim of “good and sufficient cause” for termination. Such proof must demonstrate that such a cause genuinely existed. The Courts have also acknowledged that grounds for immediate dismissal that grounds for immediate dismissal should typically be serious and recurring, rather than a one-time incident. Notwithstanding this, the Courts also acknowledged that in cases where the misconduct is sufficiently severe, a dismissal may be justified even after a single occurrence. Ultimately, both the Tribunal and the Courts have established that the reasons for dismissal must be of such significance that they result in an irreparable breakdown in the relationship between the employer and the employee, rendering the relationship untenable.
In conclusion, understanding the basic principles of employment law is crucial for employers and employees to foster a fair and respectful work environment. Maltese law prioritises equality and non-discrimination, prohibiting discriminatory treatment based on various grounds. Notwithstanding this, laws pertaining to discrimination at work have the potential to evolve and adapt over time to reflect changing social norms, legal precedents and advancements in understanding equality. The Industrial Tribunal and the Courts shall play a crucial role in shaping the interpretation and application of discrimination laws, establishing important principles and expanding the scope of protection.
Protection against unfair dismissal is also a fundamental element of employment law, aimed at safeguarding the rights of employees and providing them with appropriate remedies in cases of unjust terminations. Although the term “constructive dismissal” is not explicitly mentioned in Maltese employment law, the concept has been effectively integrated into the legal framework through active jurisprudence, having both the Industrial Tribunal and the Courts widely embracing the doctrine, as posed by English law. This is clear evidence that Maltese employment law acknowledges the importance of addressing unfair treatment in the workplace and upholding the rights and dignity of the employees.
Through the enforcement of robust employment laws and the cultivation of a culture characterised by respect, dignity and equality, Malta strives to establish a work environmental that is conducive to productivity, harmony and mutual well-being.