featuredimg

A-Z

OBJECTIVEHJR has used reasonable efforts in collecting, preparing and providing quality information and material, but does not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained in or linked to this website. Users of information or links from this website do so at their own risk. We assume no liability or responsibility for any errors or omissions in the content of this website.

A

Adoptive Leave

This is a type of statutory leave which, regulated by legal Notice 225 of 2003, afford employees time off from their employment. An employee is entitled to 4 months adoptive leave unpaid by the employer, provided the child has not reached 8 years of age. Evidence of adoption proceeding and certificate of custody will be imperative.

Alternative Dispute Resolution

Alternative dispute resolution is a means of resolving an employment dispute while at the same time avoiding the matter proceeding to litigation. The major advantages associated with alternative dispute resolution is that it tends to involve a much quicker process than litigation, it is a confidential process, a private process and generally involves significantly less financial costs for all parties concerned. Furthermore, alternative dispute resolution tends to be more flexible and it is generally more beneficial in maintaining an effective employment relationship. An employee working 40 hours/week is entitled to 192 hours of leave, ie , 4 weeks and 4 working days. Part-time employees enjoy pro-rata leave entitlement. Only 50 % of annual leave entitlement may be carried to the following year.

Annual Leave

Annual leave may be defined as time off work for employees to allow for rest and relaxation. Annual leave may not be given in place of sick leave. The allocation of annual leave is at the employer’s discretion while having reasonable regard for employees’ personal circumstances. Mediation, arbitration and conciliation are the most common of ADRs .

Ante-Natal Care

This is paid time off during normal working hours for pregnant employees to attend ante-natal medical appointments. Of such medical appointments are held during working hours. The employers may request documentation to prove that such appointments were held

Appeal Hearing

An appeal hearing may be defined as a hearing whereby an employee has the opportunity to appeal the outcome or decision of a particular process, usually, a disciplinary procedure, an employee would appeal a decision in the hope of a lesser sanction or more satisfactory outcome for him or her. In the interest of fairness and for an unbiased outcome, the appeal is usually carried out by someone unconnected to the original disciplinary process or decision and the appeals chairman must not be in a junior position to the person who reached the original decision in order to maintain impartiality. This procedure is usually agreed to in collective agreements.

Appraisals

Appraisals are a manner in which an employee’s performance and contribution is evaluated or rated as against pre-determined objective criteria or standards applicable to that employee’s role. Generally, appraisal systems outline a list of qualities (core competencies) that the employee is evaluated against and these are primarily derived from work-related attitudes and personality traits. Appraisals should be a two-way contribution with both parties adding value to the meeting and providing feedback.

B

Bereavement Leave

This is special leave given to an employee on the death of a spouse, child parents, siblings or a member of their immediate family. The entitlement may vary depending on the applicable wage regulation order, but work activities not covered by a WRO are allowed to one working day of bereavement leave.

Birth Leave

All employees are allowed birth leave on full pay on the occasion of the birth of a child to their wife. The entitlement may vary depending on the applicable Wage Regulation Order. The entitlement of birth leave is linked with the birth of a child and therefore in the case of a birth of twins, the entitlement is double.

Bonus and Weekly Allowance

The full statutory bonus payable every six months is as follows :

- June: € 135.10

- December: € 135.10

When calculating part of the bonus it can be worked out at €0.74 per calendar day including Saturdays and Sundays.

The full statutory Weekly Allowance payable every six months is as follows:

- March: €121.13

- September: €121.13

When calculating part of the weekly allowance it amounts to € 4.66 per working week, or a part thereof.

Breach of Contract

A breach of contract occurs where an employee or employer acts in such a manner that is in breach of the contract of employment. Where a breach of a contract of employment has occurred, the employer or employee may treat the contract as being “broken” or “repudiated” and they then may terminate the contractual relationship. When an employer is guilty of breaching the contract, an employee may accept the breach or, alternatively, may resign and claim to have been constructively dismissed. On the other hand, where an employee breaches the terms of his contract, an employer would normally take disciplinary action up to and including dismissal, particularly in cases of gross misconduct. The reaction must be reasonable and proportionate so an employee may not be successful in a constructive dismissal claim where a tribunal feels that resigning was an over-reaction in the circumstances. Similarly, an employer may be found guilty of unfair dismissal if he summarily dismisses an employee for something which would be deemed as minor misconduct.

Breastfeeding Employee

An employee who is breastfeeding during a period of up to 26 weeks after giving birth and who has informed by means of a certificate issued by a doctor or midwife.

Bullying

Bullying can be defined as ‘repeated inappropriate behaviour that undermines an employee’s right to dignity at work’. Generally speaking, for the purposes of employment law, bullying should not be confused with harassment as bullying may occur between individuals for any reason or no reason whatsoever. Harassment on the other hand would generally involve conduct that occurs on some form of discriminatory ground.  If an employee makes a complaint about an alleged bullying incident, it is vital that this is investigated fully and in great detail to establish whether or not the bullying can be substantiated. Employers should also adopt a written statement/policy on harassment and bullying in the workplace in line with relevant codes of practice, which sets out that there will be a zero-tolerance policy in respect of such behaviour which provides an outline for the employees of the steps they should take if they are being bullied or are aware of a bullying problem at the workplace.

Burden of Proof

Burden of proof can be defined as the duty placed upon a party to prove a disputed fact. In the case of unfair dismissal proceedings, the burden of proof lies with the employer to prove or demonstrate that the dismissal was fair and that a fair procedure took place when dismissing an employee. However, if an employee decides to leave their employment but claims that they were constructively dismissed, the burden of proof in that case lies with the employee to prove that they had no other alternative but to leave their employment.

C

Collective Agreement

Some employees are covered by agreements which are apart from traditional employment legislation and which govern their terms and conditions specifically in relation to pay and working conditions in respect of their employment.

Collective Bargaining

Collective bargaining is a form of consultation and negotiation which takes place between employers and trade unions. Collective bargaining takes place when employees of an organisation are members of a trade union and that trade union undertakes to negotiate with the employer in respect of employee terms and conditions because it is so recognized to represent the work force at that particular place of work.

Collective Redundancy

A redundancy situation generally occurs where an employee loses their job due to circumstances such as the closure of the business, reorganization within the firm, a reduction of work or in the number of staff or a change in the way work is carried out within the business.

"Collective redundancy" means the termination of the employment by an employer on grounds of redundancy, over a period of thirty days, of ten or more employees in establishments normally employing more than twenty employees but less than one hundred employees; 10% or more of the number of employees in establishments employing one hundred or more but less than three hundred employees; and thirty employees or more in establishments employing three hundred employees or more. In these circumstances, consultations with employees affected are a must.

Commission Based Remuneration

The wage payable to the employee can consist of a commission so long as the minimum weekly wage is guaranteed and such minimum wage is paid at regular intervals not exceeding four weeks in arrears.

Compromise Agreement

A compromise agreement is an agreement whereby an employer offers an employee a sum of money in order to resolve some outstanding issue and the employee in return vouches no claims against that employer are furthered.

Very often, such agreements are found in cases of termination of an employee’s contract of employment on the basis that the employer will pay the employee a settlement fee and the employee in return vouches that he will not take any claims against the employer, and where the employee has already taken a claim against the employer and a compromise agreement is reached whereby a settlement fee is paid in full and final settlement of any claims the employee has taken or may take in future.

Constructive Dismissal

Constructive dismissal is where, because of the conduct of the employer, an employee may reasonably terminate their contract of employment with their employer without the need to give prior notice in writing. The purpose of constructive dismissal is to prevent employers from trying to avoid unfair dismissal claims by forcing the employee to resign through some inappropriate behaviour. If an employee claims to have been constructively dismissed then the ‘onus of proof’ differs slightly from a normal claim of unfair dismissal. As a result, employees must prove that they had no option but to terminate their contract and that their decision to leave was reasonable. This differs from normal unfair dismissal claims where the onus is on the employer to prove that their decision to dismiss was fair and reasonable.

Contract of Indefinite Duration

A contract of indefinite duration is often referred to as a ‘permanent contract’ and it is deemed to be an offer of employment which will be of indefinite duration. This type of contract is the standard form of employment contract, as opposed to a definite contract or a specific task contract.

Contract of Service

A contract of service means an agreement, whether verbal or in writing, where a person binds him/herself to render service to, or to do work for, an employer in return for wages.

In those cases where no written contract of employment has been signed between the employee and the employer, the latter is bound to give the employee a signed statement which should include: the date of commencement of employment; the period of probation; the normal rates of wages payable; the overtime rates of wages payable; the normal hours of work; the periodicity of wage payments; in the case of a fixed or definite contract of employment, the expected or agreed duration of the contract period; the paid holidays, and the vacation, sick and other leave to which the employee is entitled; the conditions under which fines may be imposed by the employer; the title, grade, nature or category of work for which the employee is employed; the notice periods to be observed by the employer and the employee should it be the case; the collective agreement, if any, governing the employee’s conditions of work; and any other relevant or applicable condition of employment

Where a written contract signed between the employer and the employee exists, the above information should also be included in the contract. In any case, if the period of employment exceeds one month and exceeds eight hours of work a week, a copy of the contract of service or the statement signed by the employer should be given to the employee by not later than eight working days from the commencement of employment and the employer is required to keep a copy.

Cost of Living Increase

The cost of living increase is obligatory. A full-time employee is entitled to the full increase, while a part-time employee is entitled to part of the cost of living increase in proportion to the hours worked.

Court Witness Leave

There is no entitlement at law to special leave to attend court as a witness except in the case of workers in the hospital and clinics sector who are allowed special paid leave to attend court as witness in relation to police cases.

D

Disabled Employees

It is unlawful to discriminate against disabled people and the employer is to make reasonable adjustments for disabled employees to enable them to carry out their job. As a general rule, it is prohibited for a prospective employer to ask an individual health questions before being offered employment. If, during the interview, the employer asks applicant about general health or any disability and subsequently does not offer the job, there may be a case to claim that the reason for not offering the job was because of information  provided in respect of his disability.

Employers have a duty to make ‘reasonable adjustments’ to remove potential barriers that would put a disabled person at a disadvantage in the workplace. This can mean an alteration to a physical feature in the workplace. What the employer should be wary of, in these circumstances, is where an employee’s performance begins to falter. Such issues should be investigated without delay to determine whether the reason for the change in performance is a disability and reasonable adjustments should be looked at if it is. If these investigations are not made, and the decline is attributable to a disability, any ensuing disciplinary procedure may be considered less favourable treatment.

Disciplinary Rules

Disciplinary rules are necessary in an organisation to establish the expected standards of behaviour and performance of employees. Such rules enable the employer to run the business effectively and provide guidance on the company’s expectations of the performance of its employees at work.

Clear and consistent disciplinary rules should be provided in writing to the employees in the company handbook. As well as stating the rules on what conduct is acceptable and unacceptable in the workplace, the rules should contain the consequences for employees should they not attain these standards.

The rules should make it clear that if an employee fails to meet the minimum standards of conduct, then he may be subject to disciplinary action. It is highly solicited that examples of the type of behaviour which would be considered gross misconduct i.e. conduct so serious that it may lead to dismissal without notice, should be included in the handbook.

Discrimination

"Discriminatory treatment" means 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.

The employer is obliged to take steps to eliminate discrimination in recruitment and in the workplace. Discrimination can fall into various categories.

Direct discrimination is when one employee is treated less favorably than another on the basis of age, gender, religion or belief, disability or sexual orientation.

Indirect discrimination is when an employer imposes a particular requirement or practice on all employees that may unnecessarily disadvantage a certain group such as requiring employees to have short hair, thus placing a disadvantage certain religious groups.

Harassment is defined as offensive or intimidating behaviour which aims to humiliate, degrade, undermine the target and violate their dignity

Victimisation is when someone is treated less favorably than others because of having made a complaint or allegation concerned with discrimination on the basis of age, gender, religion or belief, disability or sexual orientation amongst others.

Dismissal Procedure

The sequence of events that takes place before, during and after a dismissal is the key to minimising the likelihood of unfair dismissal claims or, at least, of their success. Smaller companies often have dismissal procedures that fall short of the minimum standards of consistency and fairness, and can take place “on the hoof” after a trigger event. Large organisations, with their dedicated legal and human resources teams, tend to have much more detailed procedures and fewer successful unfair dismissal claims against them as a result. It is important that all employees understand what is and is not acceptable conduct as soon as they start work. A list of punishable wrongdoings should be accompanied by a set of procedures that will be enacted as a consequence. It is desirable that this forms part of the contract and be signed by both parties. Any punishments dealt out should be visibly consistent and must follow the dismissal procedure to the letter.

Dismissals

Bringing someone’s employment to an end is not a decision to be taken lightly. Employees have rights and employers have obligations.

When dealing with potentially gross misconduct issues, after any necessary immediate investigation the individual may be suspended from working. Since gross misconduct offences normally result in summary termination of employment, if guilty, it is obviously prudent to ensure all stages of the procedure are carried out properly and fairly. Dismissal for gross misconduct should be a very rare occurrence – most employees do not set out to get themselves sacked. Even dismissal, following warnings, should be relatively rare since, if operated properly, the disciplinary procedure should have pointed out the rules and standards required and resulted in them being followed. The only potentially fair reasons for dismissal are: wrongful conduct, redundancy, a legal prohibition or ban, or some other substantial reason.

Disputes

A workplace dispute may revolve around a concern, problem or complaint that an employee raises with his employer. Most will concern issues that are within an employer’s control i.e. treatment afforded to employees by management or other employees, but sometimes the issue may be in respect of the behaviour of clients or customers. All should be treated in the same way regardless of the subject matter. It is in everyone’s interests that disputes are resolved quickly, fairly and efficiently to maintain staff morale within the workplace.

As an employer it is vital to have written procedures in place which gives both you and the aggrieved employee a mechanism through which the grievance can be aired and, hopefully, resolved.

Whilst many disputes can be and are resolved informally, those that cannot may be pursued formally by the employee. Written policies should make clear how formal grievances should be made and how hearings will be handled, to protect both parties. Mediation should play an important role in workplace disputes.

E

Email Usage

Email is an invaluable business tool and many of us cannot remember how we operated professionally without its convenience, flexibility and immediacy. However the potential for misuse, abuse and breaches in confidentiality is enormous. The key as always is to establish clear policies and ensure the employees to understand the employers' standards and expectations on email usage.

Generally speaking when the employees are actually ‘on the clock’ they are being paid to work so it is reasonable to expect them to send only work-related emails. ‘During the working day’ is a little more complicated as this will include times when your staff have time to themselves, such as during breaks or at lunch time.  the employers' IT systems is a business tool and the IT policy should set out what the staff members can use the equipment for and the times at which they can do so.  The first port of call, therefore, needs to be to review one's policy and check what it says about email use. The staff have an obligation to devote their time and energy at work to the needs of the business. If employees send personal emails when they should be working, then they are in breach of their duty and this is a disciplinary matter.

Equipment Use

Equipment provided for use at work, (work equipment), can take many forms. It is important that work equipment is suitable for the task it is purchased to perform and that it meets both the relevant legal standards and the appropriate design and safety standards. In use the work equipment should be used for the purpose for which it was designed and in accordance with the manufacturer’s instructions.

Current safety, health and welfare legislation imposes a duty on employers to consider the implications for health and safety of every piece of work equipment that they purchase for use in the course of their business. They need to consider its design and construction against minimum legal standards and any national or international design and construction standards. The duty extends to ensuring that the work equipment is properly installed, that users are trained and supervised and that the equipment is inspected and maintained.

Employee

Employee is defined by our legislation as any person who has entered into or works under a contract of service, or any person who has undertaken personally to execute any work or service for, and under the immediate direction and control of another person when such work or service is not regulated by a specific contract of service.

Employment Contracts

The employment contract is the foundation of your relationship with your employees and vice-versa.

The relationship between employee and employer is determined by the employment contract, with many employment law issues revolving around this. It is therefore vital to understand precisely what the contract is, and how it is formed. An employment contract is legally binding instrument between both parties like any other contract. Contracts need not be in writing – an oral agreement is perfectly valid at law. The law defines an employment contract as a verbal or written agreement, whereby a person binds himself to render a service to, or to do work for an employer, in return for wages, and this includes apprenticeship.

Equal Opportunities

An equal opportunities policy is designed to ensure that an employer runs an inclusive organisation where everyone is treated with fairness, tolerance and dignity and where diversity is recognised and respected.

An employer should as a minimum comply with their equality obligations under the various pieces of anti-discrimination legislation. These are complex and it is highly recommended that expert advice is sought.

No employee or potential employee should be discriminated again on the grounds including, but not limited to: race, sex (including gender reassignment), disability, marriage/civil partnership, religion or belief, pregnancy/maternity, age, sexual orientation.

Equal Pay

Equal pay legislation has a simple purpose – to ensure that where men and women are doing equal work in the same employment, they should receive the same pay and rewards for it. Pay and employment contract terms should be determined without sex discrimination or bias.

Equal pay should fall within an overarching equal opportunities policy. This is designed to ensure that an employer runs an inclusive organisation where everyone is treated with fairness, tolerance and dignity and where diversity is recognised and respected.

Equal pay can be a complex area and professional advice should be sought to ensure you are not falling foul of the law.

It is safe to say that in Malta, the equal pay for work of equal value principle has been introduced with a wider prospective than that provided by EU law.

Equality Act 2013

Chapter 456 of the laws of Malta specifically deals with Equity for Men and Women. It introduced many new rights and responsibilities to protect individuals from discrimination.  The scope of discrimination law is both widened and reinterpreted in the Act. Some legislation actually changed within the scope of the Act, such as that relating to harassment. In other ways, legislation was extended, for example in the area of associative discrimination. It is in these detailed changes that employers run the most risk of misinterpreting the new legislation and consequently falling foul of the law.

European Working Time Directive

The European Working Time Directive is a Directive of the European Union which was introduced in 1993 with the aim of protecting the health & safety of workers across the EU. The Directive was transported into Maltese Legislation in 2003 by LN247/03 as subsequently amended. As working for long hours and excessive periods of time had been identified as one of the major causes of stress, depression and illness among workers, the European Working Time Directive was brought in to address these issues. The Working Time Directive means that workers in the EU are entitled to a limit to the amount of time they work in a week, which should not exceed 48 hours; they should have rights to paid annual leave of at least four weeks per annum (in Malta, the standard is of 4 weeks and 4 days); to rest breaks during work time and to a period of rest of at least 11 consecutive hours in any 24 hour period. The Working Time Directive also offers extra protections in the area of night work.

F

Family Friendly Policies

A family friendly policy in the workplace is intended to help employees to balance their work and family lives, and allow them to fulfil their obligations to both. They can help to relieve stress for employees with children or older dependants, and can help employers to hold on to valuable staff who may otherwise have to leave work due to conflicting family commitments. Urgent family leave and teleworking are amongst the family friendly measures which are most common.

Fit to Work

An employer should always seek medical advice on whether an employer is fit to work or otherwise. No employer should take this matter lightly and no employer should take a decision of such nature without consultation. Decision on “fitness to work” may eventually lead to termination of employment, return to employment from sick leave, changing of duties or adaptation of workplace amongst others.

Fixed Term Contracts Termination

A Fixed Term Contract can be terminated during its applicable probation period without assigning any reason. However, one week notice (by either party) applies if the employment exceeds one month.

Where there is not a justified reason to terminate an employment that is on definite basis after the probation period, the party who breaches the contract is liable to pay the other party a sum equal to one-half of the full wages that would have accrued had the contract of employment remained in force.

Flexible Working

In some situations, flexible working can be an extremely good solution for employers and employees alike. Employers reduce the risk of losing valued employees and employees have the personal benefits of being able to develop a good work-life balance. Any employee has the right to ask his or her employer for flexible work arrangements, but some employees have a statutory right to ask for a flexible working pattern. Employers are encouraged to adopt flexible working policies.


Flexitime

Flexible hours can have clear benefits to employer and employee alike. Employees might find it easier to fit their work around family or other commitments. Employers can benefit from having an office with longer operative hours, which could be particularly useful if they have international clients or suppliers. All employees have the right to ask for flexible working hours. It is always advisable that when an employer accedes to a request by an employee for flexitime working, a contract to this effect is drown up and signed by both parties.

G

Gross Misconduct

Gross misconduct is misconduct so serious that it entitles the employer to dismiss for a first offence. Generally it constitutes behaviour which could threaten the business itself or could threaten other employees, customers etc. As an employer, it is vital to have definitions of what constitutes gross misconduct and to communicate such guidelines, whilst making clear that other behaviours not outlined in the definitions may still constitute gross misconduct. The consequences of committing such offences should be made clear.

Guarantee Fund

The Guarantee Fund is a fund intended to guarantee payment of unpaid wages due by an employer to those employees whose employment is terminated because of the employer’s proved insolvency. All employees’ whose employers company is in a state of Insolvency are entitled to present a claim to the Guarantee Fund, except for those who are private domestic servants; share-fishermen; and an employee who was the owner or part owner of the employer’s undertaking or business and had a considerable influence on its activities.

Every individual employee may register a claim limited to the unpaid amounts due for: unpaid wage; any unpaid overtime; arrears for any leave entitlement for the current and preceding calendar year; and any notice money due in accordance with the laws of Malta.

The claim registered by every individual employee shall refer to unpaid amounts which were due for wages payable within six months preceding the date of the onset of insolvency of the employer or preceding the termination of employment.

Amounts paid by the Guarantee Fund shall in no case exceed a sum which is equivalent to thirteen weeks’ national minimum wage payable at the time of the termination of employment of such employee.

Grievances

A grievance is a concern, problem or complaint that an employee raises with his employer. Most grievances will concern issues that are within an employer’s control i.e. treatment afforded to employees by management or other employees, but sometimes the issue may be in respect of the behaviour of clients or customers. All grievances should be treated in the same way regardless of the subject matter.

It is in everyone’s interests that grievances are resolved quickly, fairly and efficiently to maintain staff morale within the workplace. As an employer it is vital to have written grievance procedures in place which give both the employer and the aggrieved employee a mechanism through which the grievance can be aired and, hopefully, resolved. To this effect, workplace mediation is very much solicited. Whilst many grievances can be and are resolved informally, those that cannot may be pursued formally by the employee.

Written policies should make clear how formal grievances should be made and how grievance hearings will be handled, to protect both parties.

H

Hearings (Disciplinary)

Occasions will arise where an employee’s conduct does not reach the standards expected by the employer and outlined in the employee’s contract of employment. Employers should have a clear set of procedures in place explaining what steps will be implemented should this situation arise. These include oral warnings, first written warnings, final written warnings, first and final written warnings and dismissal. Summary dismissal with no notice for gross misconduct, dismissal with notice for repeated misconduct or downgrading as an alternative to dismissal other than in cases of gross misconduct or a period of suspension without pay for repeated misconduct.

In some serious cases of misconduct following an investigation relating to the matter, it may be necessary to hold a disciplinary hearing. The employee should be given details in writing of the issue in advance of the hearing so that he can prepare his case. At the hearing the employee has the right to state his case, and is  entitled to be accompanied by a fellow employee or trade union representative.

Hours of Work

The normal hours of work for full-time employment and the maximum hours for part-time work vary according to the relevant sector of industry, although the predominant average hours of work is 40 hours per week of 5 days. These are established in Wage Regulation Orders that regulate such sectors according to their activity of work (see also L.N. 247 of 2003 - Organisation of Working Time Regulations). Generally, the normal hours of work should not exceed a maximum of an average of 48 hours a week spread over a reference period of 17 weeks. In certain sectors, as the manufacture and tourism sectors, the reference period is of one year.

An employer can ask an employee to work more than an average of 48 hours per week. However in such a case, a written consent is required from the employee concerned.

Harrassment

Employers should have a clear policy to protect their employees from harassment at work. This involves any behaviour which undermines someone else’s dignity and is considered by the recipient to be unacceptable or humiliating. It could be related to age, sex, racial orientation, sexual orientation, disability or other personal characteristics. It also could be a one-off incident or repeated actions.

I

Interviewing

Appointing the wrong person in a particular employment or to a particular post can be disastrous and extremely expensive. Having a rigorous selection and interview process can reduce the risk of that happening. It is important to remember as an employer that discrimination rules apply to job advertising and the recruitment process so be very careful to select entirely on the employee’s ability to perform the job as opposed to other grounds such as age, race, sex, disability, pregnancy, religious beliefs, sexual orientation, gender reassignment, marriage or civil partnership.

Most people consider that there are two purposes to an interview (a) for the employers to find out all they properly can about the applicant and (b) for the applicant to find out all they can about the employer/employment. Properly and professionally interviewed people are less likely to criticise an organisation and potentially damage its reputation than those who have been interviewed in a poor or unprofessional manner.

 

Industrial Tribunals

Industrial tribunals are the mechanism through which grievances relating to employment law are resolved through litigation. Issues could include unfair dismissal, redundancy payments, discrimination or any other dispute which involves an employer and an employee as much as trade disputes such as union recognition, collective agreement interpretation etc. It has exclusive jurisdiction over cases of unfair dismissals and issues relating to allegation of discrimination. the Chairpersons are appointed by the Government and in certain instances such as discrimination cases, such Tribunal is to be chaired by a lawyer. In other instances, particularly where one of the parties is a state owned or where the Government has a vested interest, the Tribunal is composed of a panel of 3 persons, a chairperson, and two members, one each as chosen by the parties to the dispute from an annually published list.


Information for Employees

Employers have specific duties to provide employees with information necessary to ensure their health and safety at work, provided it’s reasonably practicable to do so. It is a requirement by law that employees are provided with suitable information in regard to health and safety in order for them to understand what hazards they are exposed to and the safe methods which must be adopted while carrying out the work. Employers are also required to provide employees with the significant findings of risk assessments, which can be achieved by supplying documented safe systems of work.

Employers must consult with employees on health and safety issues, either directly or through a safety representative that has been either elected by the workforce or appointed by a trade union.

There are various other issues about which employees have a right to be informed by their employers.


Internet Usage

Internet can be without doubt an invaluable resource in the workplace for research and information, however the potential for abuse is great. Abuse could range from doing the weekly shopping during company time through to downloading material of a pornographic or other illicit and illegal nature.

It is vital to define what the employer’s Acceptable Use Policy constitutes and to explain this policy to everyone in the company, as well as making clear the potential outcomes should such policy be abused.

Investigations

Workplace investigations take place to gather, establish and assess the facts surrounding a grievance or disciplinary issue. Whilst they are not part of the formal disciplinary hearing, they are an important part of the process before making a determination as to whether to proceed to a disciplinary hearing.

Procedural deficiencies in an investigation process could lead to an unfair dismissal claim. The Industrial Tribunal expect employers to show they have conducted careful and fair investigations where complaints are made by or about employees.

J

Job Description

A job description, as the term implies, is a list of essential tasks and responsibilities involved in a particular job.  It serves to make clear in the minds of both the employer and the employee just what that employee should be doing and for which s/he is paid. A job description must not contain any discriminatory assumption and should contain information such as the job title, the main purpose of the job, information on workplace relationships and the main tasks associated with the job which clearly specifies that it is not an exhaustive list of duties. The job description should be signed and dated by both the employer and employee as a matter of record, and should be deemed to form part of the employment contract. The law does not impose an obligation on the employers to provide a job description to his employees.

Often, both the employer and the employee should accep

   

Job Description

A job description, as the term implies, is a list of essential tasks and responsibilities involved in a particular job.  It serves to make clear in the minds of both the employer and the employee just what that employee should be doing and for which he or she is paid. A job description must not contain any discriminatory assumption and should contain information such as the job title, the main purpose of the job, information on workplace relationships and the main tasks associated with the job which clearly specifies that it is not an exhaustive list of duties. The job description should be signed and dated by both the employer and employee as a matter of record, and should be deemed to form part of the employment contract. The law does not impose an obligation on the employers to provide a job description to his employees.

A job description forms part of the employment contract and both parties usually accept that the job description cannot be given a very strict interpretation and application. a certain degree of latitude is usually acceptable.

   

Jury Service Leave

All employees are entitled to Jury Leave, where an employee is allowed all the necessary time off on full pay to attend the court on such service.

 

Job Advertisement

There are a host of methods an employer may pursue in attracting applicants for an available position, including advertising and the use of recruitment agencies.  Probably the most common is to place advertisements in newspapers or on recruitment websites which are aimed at a ‘target group’ of potential employees. Word of mouth is a method which can lead to allegations of discrimination as certain categories of person may be indirectly excluded from the process, but whatever method of advertising is decided upon, all applicants should be channelled through the chosen procedure.   It’s important to remember, when advertising vacancies, that employment legislation still applies. Any advertisement for a position should give a fair and accurate description of the job, including job title, reporting procedure, how to apply, location of the job and the duties and responsibilities of the role. Other areas to include could be the deadline for submitting applications, the remuneration and benefits package, and skills and experience needed including academic qualifications. As a potential employer it is essential to remember that it is unlawful to discriminate in recruitment advertising on the grounds of gender, civil status, family status, sexual orientation, religion, age, disability and race. Furthermore, the advertisement should be a true reflection of the job on offer and it should not be falsely advertised as being more beneficial than the employer intends it to be. This is because the applicant will apply on the basis of the advertisement and as such the wording of the advertisement may be deemed to form part of the overall employment contract.


K

Key Workers Advice Guide

Virtually every business has a “key worker”. Key workers are those employees whom the employer rates as being of particular importance to the business and its operations. Employers should always evaluate their staff, identify their key workers and establish how easy it would be for that key worker to leave their employment to understand the potential impact this would have on the business. As such, an employer should consider a number of contractual clauses when filling key positions in order to lessen the blow of losing a key worker. For example an employer could insert a confidentiality clause or restrictive covenant in the employee’s contract so as to protect the company from that employee later setting up in competition within the same industry.


L

Legal Representation

This concerns an employee’s entitlement to legal representation, such as a solicitor, during an internal company matter. This question most prominently arises in respect of disciplinary and dismissal proceedings. There are limited exceptions where an employer should not allow a legal representative to accompany an employee.


Lateness

Lateness in an employment context concerns poor time-keeping from an employee whereby the employee does not present himself for work at or before the appropriate time. The key for dealing with lateness is consistency.  All employees need to know where they stand and what is expected from them.  Remind all employees that punctuality is expected and persistent problems will be dealt with appropriately.  Make sure that everyone is aware of the rules on timekeeping.  If someone is going to be late then they should contact the employer and let him know and also explain the reason for such lateness.  Set a clear policy in respect of making up any late time.


M

Maternity Leave

Maternity leave is a period of statutory leave whereby a pregnant employee may take time-off from work around the birth of her child. Maternity leave is considered to be “protective leave”. As such, while it was initially introduced to protect the health and safety of employees, it is also aimed to ensure that such employees are not unfairly singled out by employers, such as in a redundancy scenario. This means that employees may not have their contract of employment terminated while on maternity leave and they must be guaranteed a return from maternity leave to the same position they occupied prior to the leave or, if this is impossible, to a post which is no less favourable than the post held prior to the leave.   During maternity leave and the additional maternity leave, with the exception of remuneration, the employee has the right to benefit from normal contractual terms and conditions of employment that she would have enjoyed if she had not been absent (including annual leave and public holiday entitlement). At present, the length of maternity leave is 14 uninterrupted weeks with full pay, and another 4 weeks for which the employer is not bound to pay wages but which the employee may avail herself of.

The employee is to inform the employer in writing at least 4 weeks before commencement of the maternity leave of the date she indents to commence such leave, and at least 6 weeks of the maternity leave should be taken following the date of confinement, whilst at least 4 weeks should preceed the expected date of confinement .


Marriage Leave

Employees are entitled to paid marriage leave according to the relevant Wage Regulation Order. Employees in activities of work which are not regulated by any W.R.O., are allowed two working days of marriage leave or any other length of leave in terms of an employment contract or collective agreement.


Misconduct

Misconduct is behaviour that an employer deems inappropriate or unacceptable as coming, more often than not, from an employee. Misconduct usually relates to an employee’s conduct during working hours. There are varying degrees of severity of misconduct, ranging from minor (which might include, for example, a lack of punctuality or using the company telephone for personal calls) through to gross misconduct (such as stealing, violence or behaviour which jeopardises the safety of fellow employees). All misconduct should be subject to disciplinary proceedings and the most serious of misconduct can lead to termination of employment through dismissal.


N

National Minimum Wage

The National Minimum Wage is by law the lowest possible wage payable to an employer as a matter of public policy.

For 2013, whole-time employees aged 18 years + were entitled to € 162.19 weekly, those 17 years + € 155.41 weekly whereas those under 17 € 152.57 weekly.

For part-time employees, the minimum wage is calculated on a pro-state basis. It is always imperative to see whether there is a WRO applicable to the particular sector of employment you are interested in.


National Public Holidays

There are 14 paid holidays in a calendar year. These are divided into 9 public holidays and 5 national holidays. Public Holidays 1st January: New Year’s Day 10th February: Feast of St. Paul’s Shipwreck 19th March: Feast of St. Joseph Good Friday 1st May: Workers’ Day 29th June: Feast of St. Peter and Paul 15th August: Feast of the Assumption 8th December: Feast of Immaculate Conception 25th December: Christmas day National Holidays 31st March: Freedom Day 7th June: Sette Giugno 8th September: Feast of Our Lady of Victories 21st September: Independence Day 13th December: Republic Day

Night Work

Night work is working time that includes more than 50% (or a lower proportion as provided for in collective agreement) of the annual working time between 22.00hrs and 06.00hrs, or at least three hours of the daily working time as a normal course during night time (between 22.00hrs and 06.00hrs). A night worker’s normal hours of work shall not exceed an average of eight hours in any 24-hour period. Such average should be calculated over a reference period of 17 weeks or as specified in an applicable collective agreement.

If a registered medical practitioner informs the employer that the employee is suffering from a health condition which is connected to night work, the employer should, if possible, transfer the employee to more suitable work during daytime.


Notice Period

There are legal minimum periods of notice applicable equally for both the employer and the employee to give when terminating an indefinite contract of employment.

Less than 1 month employment – no notice
More than 1 month but less than 6 months – one week
More than 6 months but less than 2 years – two weeks
More than 2 years but less than 4 years – four weeks
More than 4 years but less than 7 years – eight weeks
More than 7 years but less than 8 years – nine weeks
More than  8 years but less than 9 years – ten weeks
More than 9 years but less than 10 years – eleven weeks
More than 10 years – twelve weeks

Employment contracts can include longer periods of notice but only for parts of a technical administrative, executive or managerial nature.


O

Organisation of Working Time

The Organisation of Working Time is important for employers and employees in respect of the following:

  • Maximum weekly working hours
  • Rest periods – including daily rest periods, weekly rest periods and rests and intervals at work
  • Sunday working
  • Nightly working hours
  • Zero hours working practices
  • Holidays and the entitlement to annual leave
  • Times and pay for annual leave
  • Public holidays

Overpayments

Overpayments can be reasonably common in businesses operating computerised payroll systems particularly in relation to bonuses or overtime. Whether the company is legally entitled to recover the overpayment is a question commonly raised.

Generally speaking a fair way to deal with the situation is to discuss it with the employee and, wherever possible, agree a structure whereby the overpayment can be repaid, either from the next pay packet or in instalments over an agreed period of time where a one off payment would not be feasible. As a general rule and under several turns of contract law, should the employee decide to keep overpaid money to him, he may be accused of having unjustly received paywork and hence be ordered to return such funds under the principle of unjustified enrichment.


Overtime

Most sectors have their minimum overtime rates regulated by the respective Wage Regulation Order (WRO) that regulates their activity of work.  The standard and average weekly hours of work in Malta is 40 hours and the maximum allowed hours of over-time weekly which the employer may request his employee to work is that of 8 hours over and above the mentioned 40. Over and above the 48 hours weekly, averaged over a period of 13 weeks, will necessarily require by law,amongst others, the express consent of the employee.

An  employee who chooses not to give his/her consent to work over an average of 48 hours a week cannot be asked to work beyond such an average. On the other hand, the employer can oblige an employee to work overtime when the total hours of work do not exceed an average of 48 hours a week, and when an employee has consented in writing to work over such an average.

An employer can offer the employee a wage that is higher than the minimum wage provided by law to compensate for overtime hours worked. This can be possible if it is clearly stated in the contract of service and circumstances actually show that the difference in the wage does truly compensate the extra hours worked according to the relevant overtime rates.


P

Parental Leave

An employee on a fixed term contract or on indefinite contract, on a full time or part time basis, and who has a minimum of one year’s continuous service is entitled to up to 4 months parental leave. Before the child is 8 years of age this right is applicable to natural parents, foster carers, adoptive parents or persons acquiring legal custody of a child, and shall be granted unpaid. There may be justifiable reasons for the employer to suspend the grant of such a leave, depending on the operation of the place of work.


Part Time Workers

A part-time employee is an employee whose normal hours of work are less than the normal hours of work of a comparable employee in relation to him/her. In respect of their conditions of employment, part-time workers are protected from being treated less favourably than full-time workers simply because they are part-time. Conditions of employment are defined to include all terms and conditions of an ordinary employment contract, whether statutory or otherwise, including for example: remuneration, pensions, voluntary health contributions, entitlement to sick pay, etc., and all benefits and rights are enjoyed on a pro rata basis. Instances where employers treat part-time employees less favourably would be where an employer selects only part-time employees for redundancy and also in terms of the proportion of annual leave granted to a part-time employee as compared to a full-time employee.


Poor Performance

Poor performance at work can be an issue of considerable concern to the employer. It not only reduces productivity but can have a negative impact on the employees who work alongside the poorly performing employee and bring down their performance too. In order to ascertain when an employee is performing poorly it is essential to have a clear job description where expectations and performance levels are detailed. Regular reviews help identify performance issues at an early stage and at that stage it is worth discussing with the employee why performance is lagging.

Whatever the situation it may be possible to re-train them to help them to become again a valued member of the workplace, or find alternative employment within the firm where they may feel more comfortable and confident.

Positive Discrimination

Positive discrimination may be defined as the provision of more favourable treatment towards a minority group that falls within one of the nine grounds of discrimination, over a majority group. A popularised term for positive discrimination is ‘affirmative action’. The practice is generally deemed to be unlawful as it effectively amounts to discrimination against the majority group. However, the practice is permitted in certain countries/jurisdictions where it is deemed that such a practice is for the common good.


Probationary Period

A probationary period should be written into all contracts of employment to ensure that the employer has an opportunity to assess the capability, reliability and suitability of a new recruit. A standard period for a probationary period would be six months, and this is applicable by law if there is no written contract. Employees holding technical, executive, administrative and managerial posts, and those whose wage is at least double the minimum wage, may be asked to have a probationary period of one year. Parties to a contract can agree to a shorter period of probation, or to waive a probationary period, but can never extend it to more than that allowed by law.

With the exception of certain rules governing pregnant employees, the employer is not obliged to give a reason for termination during the probationary period. However, if and when the employee is pregnant, the employer is bound to declare in writing that the reason, whatever that may be, is not in any way, directly or indirectly, connected to the employee's pregnancy.

 

R

Re-instatement

Re-instatement is a form of redress where an employee has successfully claimed to have been unfairly dismissed. This is the ultimate vindication of an employee as it essentially means that the employee is deemed entirely blameless in respect of such dismissal.

Re-instatement requires the employer to return the employee to his old role on the same terms and conditions. The employee is also entitled to any benefits that he would have accrued from the date of dismissal to the date of re-instatement.

Importantly, an employee is entitled to full arrears of wages where re-instatement has been ordered.

   

Reasons for Dismissal

If an employee is dismissed, the employer must give a fair reason for such dismissal in writing. Dismissal procedures should be made clear in the employee handbook and contract of employment. If good practice is not followed in a dismissal process, an employer runs the risk of being taken to an industrial tribunal for unjust dismissal or wrongful dismissal. In the event of a dismissal situation arising, it is strongly advised that professional advice is sought by the employer to avoid falling foul of the law.


Rest Periods

Where the working day is longer than six hours, an employee is entitled to not less than fifteen minutes of rest, unless a longer period of rest is provided by any other regulation or agreement. The employer is not obliged to pay the rest break since it is not considered as working time. Every worker is entitled to a minimum daily rest period of 11 consecutive hours, and every worker is entitled to an uninterrupted weekly rest period of 24 hours in addition to the 11 hours daily rest within a seven day period, or 48 consecutive hours in a period of fourteen days in addition to the 11 hours daily rest.

No rest period can be substituted by monetary compensation.


Rate of Pay

Where the same duties are performed, employees are entitled to the same rate of pay. Different rates of pay can only apply if this is based on different lengths of service which are reflected under different salary scales, annual increments or other conditions of employment, provided that such salary scales have a maximum that is achieved within a specified period of time.


Recruitment

Recruitment is a process whereby employers identify a vacant position in the company and then engage in a process to fill that position with a suitable candidate. The recruitment process may involve several stages such as advertising a vacancy, preparing job descriptions, an interview process, a selection process and the ultimate introduction of a new employee into the workforce through an induction process.

Reduced Hours

​Full-time employment with reduced hours is employment in respect of which social security contributions are payable and when the employee agrees with his/her employer to work less hours than those worked by a comparable full-timer. Before agreeing to work on reduced hours, the conditions of work applicable for full-time work must have been previously established.

Although one may deem such a working relationship to be part-time, in effect it is not, and the employee's status remains that of a full-time employee.


Redundancy

If employees are made redundant then they qualify for statutory redundancy pay and notice periods (vide Notice Periods). Employers may, if they so wish, pay an employee who is being made redundant a sum of money over and above the statutory minimum redundancy pay. This is known as an ex-gratia redundancy payment and it is a discretionary sum of money. Any ex-gratia payment given does not qualify for a redundancy rebate.


References

A reference is a written statement provided by a previous employer to an individual following on from the termination of his/her contract of employment. Generally speaking, a reference will include, at the very least, details on the employee’s position with that previous employer in addition to their start date and end date. The author of a reference owes a duty of care to the person about whom it is written and an employer may be liable for damages if, due to a negligent, defamatory or malicious reference, the person about whom the reference is written suffers a loss. The employer must be accurate and fair but must not give a misleading impression. The purpose of obtaining references is quite simply, to put an added safeguard in to the recruitment and selection process so that additional information is available which may affect the decision to employ.


Registrar of Trade Unions

The Department of Industrial and Employment Relations keeps a register of trade unions and employers’ associations. This is updated every year whereby each trade union/employers’ association is obliged to send the number of paid-up members as at June 30 of that particular year, details of committee members, a copy of their annual report and an audited copy of their financial accounts.

In order to register an Employers’ Association or a Trade Union, the related application has to be filled and signed by seven members. Applicants must state their name, age and address, while the officers should also indicate their position within the organisation, in the space provided.

Recognition means the expressed recognition of a registered trade union by an employer or by an employers association for the purposes of collective bargaining. While the law says nothing about trade union recognition, the practice is that a union is entitled to sole recognition in a particular establishment if it has more than 50 per cent of employees in that establishment as it members. It is the employer and only the employer, who awards recognition to one or more unions, or refuses such recognition.


Representation at Disciplinary/ Grievance Hearings

All employees have a statutory right to be accompanied at a grievance or a disciplinary hearing by a fellow employee or a trade union official or a legal representative. Generally speaking, this does not apply to investigation meetings, informal discussions or counselling sessions.

Such a right to representation has been declared by many a Tribunal decision to be a fundamental right, and Tribunal have found in favour of aggrieved employees on the basis of wrongful dismissals when such employees were deprived the right of representation.

Resignation

A resignation occurs where an employee submits a notice, verbal or otherwise, but preferably in writing, to the employer that he is resigning from his position with that employer, thereby terminating the contract of employment. It is important wherever possible to treat a departing employee well so as to avoid any reputational damage or negative talk whilst he is working out his notice or once he leaves. Equally it is always important to establish why an employee is leaving to check that there are no deeper problems within the organisation which could be nipped in the bud or resolved before they get out of hand. Also it is essential to ensure the resignation does not mask a deeper grievance which could lead to a future claim against the company. Thus employers should always ask employees to set out their resignation in writing. Notice periods apply.


Retirement

Retirement is where an employee leaves their employment upon reaching a specified age by virtue of a contractual clause on retirement in the employee’s contract of employment requiring them to do so or by law.

 

Rights on Termination

On the termination of a contract of service lasting over one month, the employer shall be bound, at the employee’s request, to give him/her a certificate stating the duration of the employment, the nature of the work or services performed and, if the employee so desires, the reason for the termination of the contract, and the rate of wages paid.  The employer shall not be required to state the reason of termination of employment, if the employment was terminated during probation.

The employer is under a legal obligation to re-engage an employee previously dismissed on the basis of redundancy if the post formerly occupied by him/her becomes available within a period of one year from the date of dismissal.

An employee who alleges unfair dismissal can lodge a complaint to the Industrial Tribunal within four months from the dismissal.

The employee is entitled to be paid for all entitlements, on a proportional basis according to the period of employment. All outstanding wages should be settled by the next pay date following the termination of employment. An employee who is not paid for his/her work or does not receive his/her wage on time must first bring this to the attention of his employer. If the employer persists in not issuing the payment due, the employee can report the matter to the Department of Industrial and Employment Relations for action from its end, or may seek legal advice for a private action for the recovery of such funds.


S

Sectorial Minimum Conditions of Employment

​A Wage Regulation Order is subsidiary legislation kept in force under the Employment and Industrial Relations Act that regulates certain conditions of employment of employees working in a specific sector of the industry. There are around 39 WROs.


Self-Employment

It is important for an employer to be clear about whether an employee is an employee or actually self-employed. It is essential that an employer does not erroneously categorise a worker’s genuine status, either intentionally or unintentionally because there are significant employment legislation issues in particular surrounding a worker’s status. If a worker is deemed to be an employee then he will enjoy all the protection that employment legislation affords such as the right to annual leave, public holidays, maternity leave, parental leave etc. and most importantly he retains the ability to take an unfair dismissal claim.


Severance Agreement or Settlement Agreement

A severance agreement is an agreement whereby an employer offers an employee a sum of money in order to resolve some outstanding issue and terminate the employment relationship and the employee in return vouches that he will not take any claims against that employer. Essentially, a severance agreement may arise in two guises:

The first one involves the termination of an employee’s contract of employment on the basis that the employer will pay the employee a settlement fee and the employee in return vouches that he will not take any claims against the employer.

Secondly, severance agreements may be agreed upon where the employee has already taken a claim against the employer and a severance agreement is reached whereby a settlement fee is paid in full and final settlement of any claims the employee has taken or may take in future.

These agreements are, therefore, mutually beneficial in that the employer may terminate the contract of employment and avoid litigation and its associated costs (such as negative publicity) and the employee can avail of a settlement payment made out in a tax efficient manner with the lack of litigation permitting them to get on with their careers with minimal stress.

Mediation is one valid tool which can lead two parties to reach such an agreement.

     

Sexual Harassment

Sexual harassment can be any act of physical intimacy, any express request for sexual favours or any other act or conduct including spoken words, gestures or the production, display or circulation of written words, pictures or other material, where such behaviour is unwelcome and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating. Employers should be aware that they may be liable for such harassment if perpetrated by a fellow employee of the victim, the employer themselves or a client/business contact of the employer in circumstances where the employer ought reasonably to have taken steps to prevent such harassment. Employers should also adopt a written statement/policy on harassment in the workplace in line with relevant codes of practice and take steps to ensure that employees are familiar with the terms of that policy. Person guilty of an offence of sexual harassment can be fined up to € 2329 or imprisonment not exceeding 6 months or both.


Sexual Orientation

Sexual Orientation in an employment law context arises as one of the grounds of discrimination. Discrimination shall be taken to occur where one person is treated less favourably than another on the basis that he is of a different sexual orientation.


Shift Work

There is an entitlement to shift allowance in certain Wage Regulation Orders. Ad hoc arrangements may also be applicable in enterprises governed by a collective agreement, or if there are specific clauses in a contract of employment making reference to such an allowance.


Sick Leave

Sick leave is time where an employee would normally be working but he is unable to do so due to some sickness or injury which is keeping him out of work.

The amount of sick leave varies according to the sector of employment as regulated by the various Wage Regulation Orders. In the lack of such regulation, sick leave entitlement is of 2 weeks per year. Employees should provide a medical certificate for their sick leave, and the employer is bound to issue wages only for the statutory period of sick leave. Abuse of sick leave rights can lead to dismissal.


Specified Purpose Contract

The term, specific purpose employee, covers employees whose contract ends on the completion of certain task or project or the occurrence of a particular event. Accordingly, it is agreed that the contract will finish when a particular stated task is completed, such as replacing an employee while she is on maternity leave or the completion of a construction or research project. The period of such a contract may range from a matter of weeks or months up to a period of a year or more. Employees working under a specified purpose contract are entitled to equal treatment as compared to a comparable permanent employee.


Suspension

In suspected serious cases of misconduct, an employer may suspend an employee pending investigation into the circumstances surrounding the situation. Where the misconduct falls short of potential gross misconduct then the employee should only be suspended if it is absolutely necessary and the period of suspension should be as brief as possible. However, if the employee’s actions are potentially gross misconduct, he should be suspended on pay as soon as possible since allowing the employee to continue to work would undermine the “gross” nature of his actions. If an employee is suspended in such circumstances, their contract of employment must continue together with all rights under the contract including payment of salary/wages for time spent on suspension and the accrual of leave entitlements.   Suspension without pay is a potential disciplinary outcome that employers may pursue, and it could well be used as an alternative to dismissal where the employer is willing to give the employee one further opportunity to prove himself when taking into account the employee’s mitigation or their previous clean disciplinary record.

T

Telework

Telework is an important step forward towards better family friendly conditions of employment. With the evolution of information technology certain work that is usually performed at the employer’s premises, can now be carried out away from those premises on a regular basis. Telework may be required as a condition of employment in an employment contract or resorted to by agreement, in the course of the employment relationship.

Any agreement for the performance of telework has to be in writing.

The employee is free to accept or refuse an employer’s offer of telework.  Such refusal shall not constitute a good and sufficient cause for terminating employment, nor shall it lead to a change in the conditions of employment of the employee concerned. On the other hand if an employee expresses the wish to opt for telework, it is in the employer’s discretion whether to accept or refuse such request.

The passage to telework does not affect the employee’s employment status or his right to revert back to his previous post or, in the event that this is not possible, to another similar post.

Teleworkers shall have the same rights of access and rights to participate in training and career development programmes provided by or on behalf of the employer in the same manner as comparable employees at the employer’s premises and be subject to the same appraisal policies as comparable employees.

Unless otherwise agreed upon by the employer and the teleworker in the written agreement on telework, the employer is responsible for providing, installing and maintaining the equipment necessary for the performance of telework and for providing the teleworker with an appropriate technical support facility. On the other hand the teleworker is obliged to take good care of the equipment and data provided by the employer.


Trade Disputes

A Trade Dispute is a dispute between employers and workers, or between workers and workers, which is connected with any one or more of the following matters:

  • terms and conditions of employment, or the physical conditions in which any workers are required to work;
  • engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;
  • allocation of work or the duties of employment as between workers or groups of workers;
  • matters of discipline;
  • facilities for officials of trade unions;
  • machinery for negotiation or consultation, and other procedures, relating to any of the foregoing matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of such procedures;
  • the membership or non-membership of a worker in a particular trade union. 

Trade Unions

A trade union is an organised grouping of employees which operates for the purpose of ensuring that employees receive fair treatment in respect of their working terms and conditions, primarily through the vehicle of collective bargaining.

Training Agreements

As an employer it can be immensely frustrating to lose an employee shortly after being sent on an expensive training course. Should the employer wish to recover training fees from employees in those circumstances, they need to set up a training agreement prior to the training taking place. This is entirely separate from the contract of employment. Under the training agreement, the training fees constitute a loan which must be paid back should the employee leave (or be dismissed for gross misconduct) within a certain period post-completion of training.


Transfer of Undertakings (TUPE)

The Transfer of Undertaking Regulations, 2003 (the TUPE Regulations), more commonly known as Transfer of Business Regulations, apply where a business, or part of a business, transfers from one owner to another. They are designed to safeguard employee rights in the event of such a transfer, and establish the responsibilities of both the previous and new owners of a business. In essence, where TUPE applies then the employees will transfer from the previous owner (transferor) to the new owners (transferee) and the new owner is obliged to maintain the employees’ terms and conditions existing at the time of the transfer. While TUPE primarily applies to straight-forward business sales and mergers, the regulations may also protect employees in situation such as the surrendering of a lease on a commercial premises or where an employer takes over as the service provider on a particular contract.


U

Unfair Dismissal

Unfair dismissal is where an employee has been dismissed unfairly by the employer from his employment. An employee may also claim to have been unfairly dismissed where the employer has engaged in such behaviour which leaves that employee with no other option but to leave his employment, this is known as constructive dismissal. If a claim of unfair dismissal progresses to the Industrial Tribunal, the employer will be required to prove that his decision to dismiss was fair and reasonable in the circumstances. In cases where the tribunal in favour of the dismissed employee, the tribunal may order re-instatement or compensation, the latter being a complete discretion of the tribunal in so far as quantum is concerned.


Unpaid Leave

Unpaid leave is a term used to describe a period of time that an employee spends out of work without payment but still retaining their employment status. Generally speaking, unpaid leave is granted at the employee’s request on the basis that they return to work by a specified date. The granting of such leave is at the employer’s discretion and this period of absence may take the form of a career break, compassionate leave, bereavement leave etc. Accordingly, such leave should be viewed as discretionary leave rather than a right or entitlement.


Urgent Family Leave

The employer is bound by law to grant every employee a minimum total of fifteen hours with pay per year as time off for urgent family reasons. These hours are to be deducted from the annual leave entitlement of the employee. Such urgent leave has to be related to cases of sickness or accident to members of the immediate family of the employee.


V

Vacation Leave

By law, an employee working 40 hours per week is entitled to 192 hours of paid annual leave (that is at least the equivalent in hours of four weeks and four working days calculated on the basis of a 40-hour working week, and an 8-hour working day). If the average normal hours, excluding overtime, calculated over a period of 17 weeks is below or exceeds 40 hours per week, the vacation leave entitlement in hours should be adjusted accordingly. Vacation leave starts to accumulate as from commencement of employment. When an employee is in employment for less than 12 months, s/he shall be entitled to a proportionate amount of annual leave. The application for leave has to be approved by the employer before an employee can proceed with leave.

The law specifies that a minimum period equivalent to four weeks (160 hours) cannot be replaced by any allowance, except where the worker’s employment is terminated. Therefore in respect of the 160 hours that cannot be compensated for, the employee cannot claim payment. It is only possible to carry forward up to 50% of the annual leave entitlement to the following year if there is an agreement with the employer.

Upon termination from employment, an employee has the right to claim financial compensation for any balance of outstanding leave that is due.

Variable Hours Contracts

Variable hours contracts are applicable to employees whose hours of work will vary each week, typically those on shift work. Variable hours contracts are permitted under legislation provided there is a method by which the employees are made aware well in advance of the hours they will be required to work. In instances such as this a staff rota is advisable as it will set out the weekly working hours for staff and provide ample notice of this. It is important to note that if an employee is not required to work any hours in a given week, possibly due to business circumstances or the employee not making themselves available, then it would be the case that the employee should be put on temporary layoff until the work becomes available. Variable hour contracts are not regulated by legislation but there is nothing in the law that prevents the use of such contracts.

       

Variation of Contractual Terms

There may be times when it becomes essential for an employer to change the terms and conditions of an employee’s employment contract, or to change collectively the terms and conditions of all the employee’s contracts. This may be due to a change in the economic environment, a restructuring, a change of location or other changes to laws and regulations. Changes may apply, for example, to rates of pay, hours of work, duties and responsibilities or the location of the workplace. It is possible for an employer to change terms and conditions of an employment contract. However, that cannot be done without negotiation and agreement with the employee individually or employees collectively, through a union, elected representatives or employee association.


Vicarious Liability

The doctrine of vicarious liability provides that where an employee commits a wrong in the course of his employment, not only may that employee be directly liable for his action but also his employer may be held vicariously liable for that employee’s wrongdoing. Essentially, the employer may be liable for his employee’s conduct. The most common example is where an employee is guilty of negligence which results in injury to a third party such as a customer. That third party may take legal action against the employer in such circumstances.

Vicarious liability ensures that employers promote good practice and train employees properly in terms of working practices and health and safety.

 

Victimisation

An employer who files a complaint to the lawful authorities or an employee who has initiated or participated in proceedings for redress on grounds of alleged breaches of employment law, or an employee who has disclosed information, confidential or otherwise, to a designated public regulating body, regarding an alleged illegal or corrupt activity committed by the employer or person on behalf of the employer, are to be protected by law against victimization.


W

Wage Deductions

An employer is not allowed to make deductions from the employee’s wage except where permitted by law or by an order of a competent court. If the employer does not allow an employee to work the full weekly hours, the employee has the right to be paid his/her full weekly wage as agreed in the contract of employment. If an employee fails to work the total number of hours in a week as agreed in the contract of service, the employer may deduct from the total wage due to the employee only that part which corresponds to the hours lost.

Suspension without pay or with reduced pay is considered as a fine and is only permitted if it is agreed in the collective agreement or a prior authorisation from the Director of Industrial and Employment Relations has been given.


Warnings

Warnings are issued to employees where they have engaged in misconduct or where there are issues in respect of their competency in performing their working duties. Employers should be aware that warnings are meant to be ‘corrective’ and not ‘punitive’ and as a result warnings should only be issued in order to correct particular behaviour. As warnings must not be punitive, an employer must therefore ensure that warnings issued are reasonable. Warnings tend to vary from a verbal warning, to a written warning, to a final written warning and ultimately a series of successive warnings may lead to dismissal. It is important to be aware that there is a clear distinction between warnings for misconduct and warnings for incompetence. Employers must ensure that any warning issued must have been through a fair and reasonable process and to do this an employer must ensure that a fair disciplinary hearing has been conducted.


Whistleblowing

Under certain limited circumstances, employees have legal protection if they make disclosures about organisations for whom they work. These employees are commonly referred to as ‘whistle blowers’ and their activities have often received wide publicity in the media. Employees, who blew the whistle on organisations, were often treated detrimentally by the employer or in some circumstances their employment was terminated. This discouraged employees from whistle blowing even where such action would be for the good of the public.


Work Permits

A work permit is a legal authorisation which allows a non-EU national to legitimately enter into employment abroad to work in the position specified on the permit itself. In order to work abroad a non-EU national must hold a valid employment permit.  An EU national is any individual from any of the European Union Member States but also includes Liechtenstein, Iceland and Norway.


Working for a Competitor

As an employer, there is very little that can be more exasperating than seeing a good employee in whom you have invested time and money leave to join a competitor. However there are steps you can take as an employer to reasonably protect your legitimate business interest should an employee decide to leave to work for a competitor. Non-compete restrictive covenant in an employee’s contract of employment could preventing them from working for a competitor, often within a specific geographical area, for a set period following termination, have more often than once however been found to be unenforceable clauses.


Works Councils

A Works Council is a body representing workers, at all levels, which functions as a local accompaniment to national labour negotiations. Works councils exist with different names in a variety of related forms in a number of European countries.

European Works Councils (EWCs) are standing bodies providing for the information and consultation of employees in Community-scale (EU) undertakings and Community-scale groups of undertakings as required by the 1994 European Works Council Directive (Directive 94/45/EC). EWCs were created partly as a response to increased transnational restructuring brought about by the Single European Act, and exist for the following reasons;

They give representatives of workers from all European countries in large Multi-National companies a direct line of communication to the top line Management;

They make sure that workers in different countries all received the same information about transnational policies and plans; and

They give workers’ representatives in unions and national works councils the opportunity to consult with each other and to develop a common European response to employers’ transnational plans, which management must then consider before those plans are implemented.


Y

Young Persons Working Advice Guide

The Protection of Young Persons in employment aims to protect the health of young workers to ensure that a young person’s education is not put at risk due to working during the school year. The law sets out minimum age limits for employment, rest intervals and maximum working hours for employees who are under the age of 18. In fact the law defines a young person as any person under 18 years of age. Issues such as the working time, breaks, annual rest and duties of employers are all dealt with by the law, which affords higher protection where it concerns children in employment.


© Copyright 2019 | Objective HR
Powered by