Dr Sarah Farrugia delves into Employment Law, explaining the current stance Maltese Law takes with regards to employment, as well as examining the changes proposed in the Legal Notice, to come into force on 2nd August 2022. What are the differences facing each and every one of us at work? Will work-life balance be positively increased? Read this article to find out more, whether you are a current or future parent (natural or adoptive), a carer, or in need of flexible hours.
Over the years, Employment Law has seen an increase in the shift towards a work-life balance. Especially now, after the Covid-19 pandemic’s effects on life at work, the concept of work-life balance has been put at the forefront of everyone’s legal agenda. This is further exemplified on the European scale, as depicted clearly through the recent Directive 2019/1158 (EU DVE 2019/1158) on work-life balance for parents and carers. This Directive establishes the minimum rights and obligations by which EU Member States are legally obliged to abide.
The EU DVE 2019/1158 was promulgated in 2019. Owing to the fact that it is a Directive, it is not directly applicable. Member States are under the obligation to transpose its provisions into their legal framework for the purpose of compliance with this Directive by the 2nd August 2022.
As a result of this obligation, the Maltese Government has been working towards implementing this Directive to Maltese Law through Legal Notice 201 of 2022. In this article we are delving into the main implications of LN 201 of 2022 and assessing it vis à vis the old regime.
Legal Notice 201 of 2022 titled The Work – Life Balance for Parents and Carers Regulations will come into force on the 2nd of August 2022.
Before Legal Notice 201 of 2022:
A person whose wife/partner has given birth was entitled to one day of paid birth leave in terms of the Minimum Special Leave Entitlement Regulations (SL 452.101).
After Legal Notice 201 of 2022:
Fathers or equivalent second parents, have the right to paternity leave of ten working days, which are remunerated at full pay. This must be taken on the occasion of the birth or adoption of the employee’s child, immediately after the birth or adoption of the said child. Such leave is not subject to any work or service qualification and shall be granted irrespective of the marital or family status (L.N 201 of 2022).
Before Legal Notice 201 of 2022:
Parental Leave Entitlement Regulations (SL 452.78) provided that the employee, whether male or female, and when having been in the employment of the same employer for a continuous period of at least 12 months, has the right to be granted unpaid parental leave on the grounds of birth, adoption, fostering or legal custody of a child to enable them to take care of that child for a period of four months, right up until the child is 8 years of age. This can be availed of in periods of one month at a time.
After Legal Notice 201 of 2022:
SL 452.78 has been repealed and now the following applies with respect to parental leave: every worker, whether full-time, part-time, indefinite or on a fixed-term contract, is entitled to parental leave. The employee must have been in employment for at least a continuous period of 12 months.
As stipulated by the newly enacted Legal Notice 201 of 2022, parents are now granted paid parental leave on grounds of birth, adoption, child fostering and legal custody to enable them to care for that child for a period of four months, until the child has attained the age of eight. Only two months of the parental leave may be transferred from one parent and the other. The law does not seem to specify whether it is the unpaid or paid leave which can be transferred, however, one can reasonably assume that these queries will be addressed with time once the Legal Notice comes into force.
The entitlement of four months is split into three tiers, depending on the age of the employee’s child. The brackets are: 0-4 years of age, 4-6 years of age, and 6-8 years of age. Parental leave shall be paid for a period of two months and will be at the same established rate as the sickness benefit entitlement as stipulated by the Social Security Act - whereas the other two months of parental leave are to be unpaid. It is also interesting to note that once parental leave is given it cannot be suspended unless it is otherwise agreed between the parties. Additionally, Regulation 6 states that parental leave will be paid as follows;
(a) fifty per centum (50%) of entitlement will be paid, where the child or children for whose care parental leave was granted has or have not attained four (4) years of age;
(b) twenty-five per centum (25%) of entitlement will be paid, where the child or children for whose care parental leave was granted has or have attained the age of four (4) years but has or have not yet attained the age of six (6) years; and
(c) twenty-five per centum (25%) of entitlement will be paid, where the child or children for whose care parental leave was granted has or have attained the age of six (6) years but has or have not yet attained the age of eight (8) years
To summarise, the law establishes that payment of parental leave will be spread out depending on the age of the employee’s child. For example, the parent is entitled to 50% paid leave, this translates to 1 month paid leave and 1-month unpaid leave if the child falls under the first bracket, thus has not attained 4 years of age.
Before Legal Notice 201 of 2022:
This is a new concept which has hitherto never been addressed. Prior to the promulgation of Legal Notice 201 of 2022, carers would normally take time off by virtue of their personal leave to give support and care for those in need.
After Legal Notice 201 of 2022:
Carers are now defined as follows;
“as any worker providing personal care or support to a relative, or to a person who lives in the same household as the worker, and who is in need of care or support for a serious medical reason”
The new Legal Notice provides carers with five unpaid working days per year. To avail oneself of such unpaid leave, the carer must present medical proof showing that the person the employee is caring for is suffering from an illness and is in need of care and support. One might question whether there are any GDPR implications with this legal requirement, however, it is very clear that there is a legal basis for such a request. With this in mind, the employer is still legally obliged to abide by all the GDPR requirements such as the retention period.
Before Legal Notice 201 of 2022:
This is yet another new concept which was previously left unaddressed by the law. Flexible working arrangements are defined as follows:
“The possibility for workers to adjust their working patterns, including through the use of remote working arrangements, flexible working schedules, or reduced working hours.”
After Legal Notice 201 of 2022:
Workers with children up to the age of eight years, together with carers, have the right to request flexible working arrangement for caring purposes
Overall, the Legal Notice is a step in the right direction. It aims to create a work-life balance and tries to address the injustices and the imbalances which were a norm up until a few years ago.
Still, there are many queries which the Legal Notice fails to address, including but not limited to, ambiguity regarding which party is to carry the burden of such costs, or yet again ambiguity regarding which leave is transferable between parents. Subsequently, it needs to be underlined that this Legal Notice creates a heavy burden on HR specialists, who need to introduce new administrative processes in order to ensure that their internal mechanisms are aligned with the requirements enforced through Legal Notice 201 of 2022.
If you have any queries with respect to the Legal Notice’s interpretation or if you have been deprived of any of these rights, do not hesitate to contact us so that we can help you safeguarding your rights. We offer consultations and legal advice on an array of positions pertaining to Employment Law.
