Changes To The Contract
In accordance with civil law contractual principles, an employer may not change any terms of the employee’s contract without the employee’s consent. Such consent may be express (by the employee agreeing to the change) or implied (by the employee continuing to work for the employer without protest after becoming aware of the change).
Any change of terms to which the employee does not consent will amount to a breach of contract. If the change is a significant one which goes to the root of the contract, the employee is entitled to resign and treat the contract as terminated. In so doing, the employee may also claim that he/she has been constructively dismissed and seek damages accordingly.
Change In Ownership Of The Business
The Transfer of Business (Protection of Employment) Regulations (S.L 452.85) regulate the transfer of a business or undertaking, whether in whole or in part, by a person from an employer. In situations where the Act applies, employees carrying out the work in question automatically transfer with the work and thereby become employees of the new entity carrying out the work. The employees must generally remain on exactly the same terms of employment as they enjoyed prior to the transfer (with the exception of old age, invalidity or survivors’ benefits under supplementary company pension schemes outside the Social Security Act).
There are obligations imposed on both the old and the new employers to consult with the affected employees though elected representatives, or a recognised Trade Union, prior to the transfer taking place (and financial penalties for failure to do so).
Employees are allowed to refuse to transfer to the new employer. However, if they do, they will be deemed to have resigned and will not be entitled to any compensation (unless the refusal relates to a failure to maintain the same terms and conditions after the transfer).
Social Security Contributions
Both employers and employees are required to make social security contributions.
Accidents At Work
Under the Occupational Health and Safety Authority Act (Cap 424) it shall be the duty of an employer to ensure the health and safety at all times of all persons who may be affected by the work being carried out for such employer. The employer therefore has a duty to take up all the necessary measures as defined in the Act itself, to prevent the physical and psychological ill-health, injury or death of all employees.
Employers also have a duty to have regard to the safety of third-party injuries or death resulting from acts of their employees.
Discipline And Grievance
There is no specific legislation which deals with issues of discipline and grievances of employees. However, the Industrial Tribunal has consistently held that, before terminating the employment of an employee, the employer should give more than one warning to the employee in order to give the employee an opportunity to mend his ways. Furthermore, the employee should be given the opportunity to explain his/her actions before a decision is taken by the employer on the future of the employee’s employment.
Employees are protected from discrimination on the grounds 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, as well as discrimination in relation to whether they are employed on part-time or fixed fixed-term basis.
Discrimination may occur before the employment relationship commences (for example in advertising the job), during the employment (for example in failing to promote), on termination or even after the employment has ended (for example in writing a reference).
The Equal Treatment in Employment Regulations (S.L 452.92) makes special provisions for discrimination on grounds of religion or religious belief, disability, age, sexual orientation and racial or ethnic origin. Discrimination may be direct (for example refusing to employ a man or woman), or indirect (for example by imposing a condition which will place certain persons at a disadvantage).
A person claiming to have been subjected to discriminatory treatment, whether direct or indirect, in relation to his employment may, within four months of the alleged breach, refer the matter to the Industrial Tribunal for redress. The Industrial Tribunal may take such measures as it deems appropriate including the cancellation of any contract of service or of any clause in a contract or in a collective agreement which is discriminatory and shall order the payment of compensation for loss and damage sustained by the party suffering the discrimination.
Harassment and sexual harassment are separate types of claim but are linked with discrimination. Harassment involves unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. It is unlawful if it is related to any of the discriminatory grounds listed above.
An employer must take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment in the workplace, in access to employment, vocational training and promotion.
Victimisation is also a form of discrimination that involves treating a person less favourably because they have complained (or intend to complain) about discrimination, or because they have given evidence in relation to another person’s complaint. An employee must not be disciplined or dismissed, or suffer reprisals from colleagues, for complaining about discrimination or harassment at work.
Victimisation occurs when the employer takes retaliatory action against a person for having made a complaint to the lawful authorities or for having initiated or participated in proceedings for redress on grounds of alleged breach of the provisions of the Act, or for having disclosed information to a designated public regulating body regarding alleged illegal or corrupt activities being committed by his employer.
The concept of equal pay is recognised by legislation. It provides that a woman is entitled to enjoy working terms that are as favourable as those of a man in the same employment, provided that the woman and the man are employed to carry out work of equal value.
Compulsory Training Obligations
There are no compulsory training obligations for employees generally.
Except where expressly permitted by law, or where ordered by a competent court, or authorised in an agreement entered into between an employer and a trade union, an employer shall not make any deductions nor enter into any contract with an employee authorising any deductions to be made from the wages due to the employee.
Payments For Maternity And Disability Leave
Employees will benefit from certain payments subject to satisfying the relevant necessary requirements.
A pregnant employee is entitled to maternity leave with full wages for an uninterrupted period of 14 weeks if she notifies her employer at least 4 weeks before the maternity leave begins. (She is furthermore entitled to an extra period of four weeks of maternity leave, during which she will only be statutorily entitled to receive social benefits.) Where a female employee does not resume work on the expiration of maternity leave or after having returned to work, abandons the service of her employer without good and sufficient cause within 6 months from the date of such return, she shall be liable to pay the employer a sum equivalent to the wages she received during the maternity leave.
With regard to sickness absence, an employee is entitled to statutory sick leave of the equivalent in hours of two weeks every year. The first 3 days of any claim for sick leave shall be paid in full by the employer. When an employee is in employment for less than 12 months, the employee shall only be entitled to sick leave as is in proportion to the period of employment.
Employees who are injured in the course of their employment enjoy a maximum of one year leave on full wages, less the amount of any injury benefit to which they may be entitled under the Social Security Act.
There are no compulsory insurance obligations.
Absence For Military Or Public Service Duties
Employees are entitled to leave to carry out military or jury service for as long as necessary.
Works Councils or Trade Unions
An employer may voluntarily agree to recognise a Trade Union for collective bargaining purposes. A Trade Union can demand recognition if the majority of the workforce in a specific class belong to it. The Industrial Tribunal will award recognition to the trade union where there is a dispute between the employer and a union or a dispute between two or more unions.
An employee who is a member of a Trade Union has certain rights in relation to his employer. For example, dismissal for membership of or for taking part in the activities of a Trade Union in the capacity of an employees’ representative is automatically unfair for the purposes of unfair dismissal. Discriminatory treatment against an employee for membership of or for taking part in the activities of a Trade Union gives the employee the right to complain to the Industrial Tribunal.
Employees’ Right To Strike
While the right of association is entrenched in the constitution, there is no general right for employees to strike. However, certain immunities will be granted in respect of acts done by a person in contemplation of a trade dispute and in pursuance of a directive issued by a trade union, whether he belongs to it or not.
Employees On Strike
Acts by employees in contemplation of a trade dispute and in pursuance of a directive issued by a trade union, as stated above, shall not be actionable in damages as such acts do not constitute a breach of the employment contract. When an employee is on strike the employer cannot terminate the contract of employment or discriminate against the employee, unless the employee’s actions are in breach of a collective agreement/ settlement, decision or agreement that has been subject to the voluntary settlements procedure, or of a decision of the Industrial Tribunal.
Employers’ Responsibility For Actions Of Their Employees
Under civil law, an employer will be liable for damage caused to third parties by the incompetent or negligent acts of its employees in circumstances whether the employer knew the employee was incompetent or negligent, or simply failed to consider whether there were reasonable grounds for believing that the employee was competent.
In Contracts of Work situations, the contractor is responsible for the acts of all persons employed by him.
An employer may also be responsible for the acts of its employees where it does not comply with certain occupational health and safety obligations, such as by failing to provide workers with sufficient information, instruction, training and supervision.