Remote Working in Malta: Legal Considerations for Employers and Employees

The COVID-19 pandemic has fundamentally shifted how businesses operate, with remote work becoming an increasingly permanent fixture across industries, including in Malta. While this flexible mode of work offers significant advantages, such as increased productivity and work-life balance, it also brings about legal considerations that employers and employees must navigate in accordance with Maltese law.

1. The Legal Framework for Remote Working in Malta

Remote working in Malta is primarily governed by the Employment and Industrial Relations Act (EIRA), subsidiary legislation, and the individual employment contract. Although the legal framework does not have specific provisions exclusively dedicated to remote work, the general principles of employment law continue to apply in this context. For more formal arrangements, remote work can be governed by specific agreements or collective bargaining.

2. Employment Contracts and Remote Work

When transitioning to a remote working arrangement, employers must ensure that the terms of employment are in line with Maltese law. A written agreement outlining the remote work conditions should be included in the employment contract or as an addendum. Key issues to address in this agreement include:

Place of Work: The place of work should specify whether the employee will work from home, a coworking space, or alternate locations.
Work Hours: Remote workers must have clear working hours, including break periods, in accordance with the Organisation of Working Time Regulations (S.L. 452.87). Employees should not be expected to work beyond the maximum hours allowed by law unless agreed upon.
Health and Safety: Employers remain responsible for ensuring that remote workers have a safe working environment. This obligation extends to assessing potential risks associated with remote workspaces, even if the work is performed from an employee’s home. Under the Occupational Health and Safety Authority Act (Chapter 424), both the employer and employee are responsible for ensuring a safe working environment.

3. Health and Safety Considerations

While the employee’s home or remote working location might seem outside the scope of typical workplace safety concerns, Maltese law still mandates that employers ensure the health and safety of their workers, regardless of where they are located. Employers may:

Risk Assessments: Conduct risk assessments on the home environment or request the employee to self-assess the work conditions. This could involve providing guidance on ergonomic setups, access to necessary work equipment, and monitoring compliance with health and safety regulations.
Support and Training: Provide remote workers with appropriate training on safe work practices, ensuring they understand their rights and responsibilities while working from home.

4. Data Protection and Confidentiality

The General Data Protection Regulation (GDPR), implemented in Malta through the Data Protection Act (Chapter 586), applies to remote working arrangements. Employers must ensure that remote work does not compromise the confidentiality of sensitive data or customer information.

Data Security: Employers should implement appropriate cybersecurity measures such as VPNs, firewalls, encryption, and secure login credentials to safeguard sensitive information accessed remotely.
Policy Development: A remote work policy that includes guidelines on data protection, confidentiality, and acceptable use of company equipment is essential to mitigate risks of data breaches.

5. Monitoring and Surveillance

Employers may need to monitor the performance of remote workers, but they must do so within the confines of Maltese employment law and GDPR. Any monitoring must be proportional and necessary, with employees fully informed of what data is being collected and how it will be used.

Transparency: Employers must be transparent about the monitoring tools used to track productivity, the purpose of the monitoring, and how the data will be processed.
Proportionality: Monitoring should be limited to what is necessary and should not infringe on the employee’s right to privacy. Overreach in monitoring could lead to legal challenges based on data protection violations.

6. Employment Status and Rights

Employers and employees must also consider how remote working affects employment status, rights, and obligations. For instance, part-time employees have protections under the Part-Time Employees Regulations (S.L. 452.79), which equally apply to those working remotely. Furthermore, remote workers should be entitled to the same benefits, including:

Leave Entitlements: Remote workers are entitled to annual leave, sick leave, and other statutory benefits provided for by Maltese law.
Rest Periods and Overtime: Employees must also receive their statutory rest periods and be compensated for any overtime worked, even when working remotely.

7. Tax and Social Security Implications

Remote working may also have tax and social security implications for both employers and employees, particularly when the employee is working from a location outside of Malta. The applicable rules depend on the specific situation:

Tax Residency: Remote work could affect an employee’s tax residency status, potentially subjecting them to tax obligations in another jurisdiction. Employers and employees should seek advice on double taxation agreements (DTAs) to avoid being taxed twice.
Social Security Contributions: If an employee works remotely from another EU country, Regulation (EC) No 883/2004 on the coordination of social security systems applies, and contributions may need to be made in the employee’s country of residence.

8. Termination of Employment and Remote Work

The fact that an employee works remotely does not alter their rights regarding termination of employment. Employers must continue to adhere to the standard procedures for dismissal and redundancy as stipulated in Maltese law. Remote workers are entitled to the same protections against unfair dismissal and should be treated equally in the event of redundancies.

Conclusion

As remote working becomes more widespread, employers and employees in Malta must ensure that their working arrangements are compliant with existing laws. Employers need to balance flexibility with obligations under employment law, health and safety requirements, and data protection standards.

It is crucial for both parties to have clear and documented agreements that set expectations while protecting their respective rights and interests. Consulting with legal professionals to draft comprehensive remote work policies and contracts is highly recommended to mitigate risks and ensure compliance with Maltese law.