Probation In Maltese Employment Law

Probation is a fundamental institution of Maltese employment law, serving as a trial period during which both employer and employee can assess the suitability of the employment relationship before it acquires full legal permanence. The probationary period represents a deliberate legislative compromise: it affords employers the operational flexibility to evaluate an employee's performance and suitability.

The legal framework governing probation in Malta is primarily contained in the Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta (hereinafter "EIRA"), supplemented by relevant subsidiary legislation and a growing body of domestic case law from the Industrial Tribunal and the Civil Courts.

The Legal Provisions

Article 36 of the EIRA constitutes the principal statutory provision regulating probationary employment. Pursuant to Article 36, every contract of employment is deemed to include a probationary period unless the parties expressly exclude probationary period in writing. The legislative policy is thus to make probation the default position, reflecting a pragmatic acknowledgment of the practical realities of the employment relationship.

Under Article 36 of the EIRA, the maximum probationary period for employees generally is six months. By virtue of article 36 (1c), the Parties can agree to a shorter probation. For managerial, technical, executive and administrative employees earning at least double the national minimum wages established during the year of engagement shall be on probation for a period of twelve (12) months. This longer probation must be specifically written down in the contract of employment. These maxima are mandatory and cannot be contracted out of to the detriment of the employee.

During the probationary period, either party may terminate the contract of employment for any reason by giving not less than one week's notice, unless the contract provides for a shorter notice period, where the employment exceeds one month. This reduced notice requirement reflects the very nature of probation as a mutual assessment exercise. Importantly, where a contract is terminated during probation without notice, and notice is due as the contract has exceeded one month, the party so terminating must pay compensation equivalent to the notice period.

The courts have consistently held that the notice obligation during probation, though reduced, remains a mandatory minimum and cannot be waived unilaterally by the employer. In Ana Maria Obando Castellanos maghrufa bhala Ana Obando vs Rettur ta' l-Universita' ta' Malta u Universita' ta' Malta, decided on 21 April 2023, the Tribunal further observed that the statutory one-week notice period constitutes a rule of public order which, under the EIRA, cannot be derogated from even by agreement between the parties. In the words of the Tribunal, "It-Tribunal jirrileva li dan il-perjodu ta' avviz fiss ta' gimgha fir-rigward tax-xoghol bi prova tibqa' mposizzjoni legali ta' ordni pubbliku li skond l-istess Att ma tippermettiex li tigi varjata mqar bil-kunsens tal-partijiet infushom."Any purported dismissal without the requisite notice during probation entitles the employee to compensation, even if the dismissal on its merits would have been lawful.

Certain categories of worker are excluded from or subject to modified probationary rules. Fixed-term employees benefit from proportionately shorter probationary periods commensurate with the expected duration of their contract. Part-time employees equally benefit from the non-discrimination provisions ensuring that probationary entitlements mirror those of comparable full-time workers.

Legal Nature and Rights During Probation

A probationary employee is not without legal protection. While it is highly unlikely to obtain a successful challenge of a dismissal during probation as opposed to permanent employees, the following rights are preserved:

Wage and Condition Entitlements: Probationary employees are entitled to all statutory minimum wages and conditions of employment applicable under the EIRA and relevant Wage Regulation Orders (WROs). The probationary status does not permit the employer to pay below the national minimum wage.

Non-Discrimination: The prohibition on discrimination on grounds of sex, race, religion, national origin, disability, sexual orientation, age and other protected characteristics under the Equal Treatment in Employment Regulations (S.L. 452.95) applies with full force during the probationary period.

Health and Safety: The Health and Safety at Work Act (Chapter 646 of the Laws of Malta) applies to probationary employees in the same manner as to all other workers.

Maternity and Parental Rights: Dismissal of a female employee during the probationary period on grounds connected with pregnancy or maternity constitutes unlawful dismissal regardless of the probationary status of the employee.

Termination of Employment During the Probationary Period

Termination of a probationary employee's contract, provided it is not grounded on a prohibited reason (such as discrimination or victimisation), generally requires only that the prescribed notice be given. The employer is under no obligation in law to furnish reasons for a termination during probation.

Unlawful Termination During Probation

Notwithstanding the employer's broader discretion, termination of a probationary contract will be considered unlawful where:

(a) The dismissal is connected with the exercise of a statutory right (e.g., filing a complaint with the Department of Industrial and Employment Relations);

(b) The dismissal is tainted by discrimination on any of the protected grounds under Maltese anti-discrimination law;

The scope of anti-discrimination protection during the probationary period was addressed in Jonathan Ferris v Financial Intelligence Analysis Unit, decided on 14 June 2024. In this case, the Court of Appeal upheld the Industrial Tribunal's preliminary decision and emphasised that the existence of a probationary period does not permit an employer to act without constraint, noting that an employer cannot "do as he pleases" merely because the employee is still serving probation. Rather, the employer is expected to ensure that such employee is able to perform his duties and is provided with the necessary support to integrate into the role, and shall not subject the employee to discriminatory treatment or victimisation as a strategy to force resignation or justify termination.

Referring to Article 26(1)(a) of the EIRA, the Court observed that during the probationary period the employee has the right not to suffer any discriminatory treatment, both in relation to the conditions of employment and also in the event of his dismissal. This right is unlimited and applies throughout all stages of the employment relationship, including during the probationary period. The Court cautioned that interpreting the law otherwise would risk exposing employees to abuse at the hands of their employers.

The Court of Appeal therefore confirmed the Industrial Tribunal's finding that the dismissal constituted discriminatory treatment and upheld the award of €20,000 in compensation, having regard in particular to the inconsistencies in the employer's allegations of poor performance and the differential treatment to which the employee was subjected in comparison with his colleagues.

(c) The dismissal is by way of victimisation for whistle-blowing activities protected under the Protection of the Whistleblower Act (Chapter 527);

(d) The required statutory notice (minimum one week) is not given or compensated; or

(e) The dismissal occurs in circumstances amounting to constructive dismissal, whereby the employer's conduct forces the employee to resign.

Maltese Case Law on Probation

The Industrial Tribunal and the courts have over the years developed a rich body of case law interpreting and applying the statutory provisions on probation. The following leading cases illustrate the principal legal principles in this area.

A key principle emerging from jurisprudence is that probation applies by operation of law, even where the contract of employment makes no reference to it. In Mark Grima vs Fork & Night Ltd, decided on 19 April 2022, the Industrial Tribunal confirmed that where there is a lacuna in the contract, the law must be applied. Since the contract contained no reference to probation or its duration, Article 36 of the Employment and Industrial Relations Act (EIRA) therefore governed the relationship. The Tribunal further emphasised that any agreement to exclude probation must be made in writing.

Case law has also clarified the interpretation of Article 36(1b) of the EIRA, which regulates probation in relation to technical, executive, administrative, or managerial roles. In Mario Cardona v Malta Food Agency, decided on 3 October 2024, the Tribunal examined the legislator's use of the word "and" in the provision and held that it establishes two cumulative rather than alternative requirements for a twelve-month probation period to apply: first, that the employee occupies a technical, executive, administrative, or managerial post; and secondly, that the employee earns at least double the national minimum wage.

In this case, the employer has incorrectly assumed that Article 36(1b) applied solely because the claimant's salary exceeded double the minimum wage. The Tribunal rejected this interpretation, finding that the claimant's role as an inspecting officer did not fall within any of the categories listed in the article. Consequently, the applicable probation period remained six months, as expressly agreed in the contract of employment.

The Tribunal further clarified that, where an employee does fall within the categories listed in Article 36(1b), the parties may, at the time of contracting, agree on a probationary period which may be less than six months but may not exceed one year. However, once the parties have agreed on the length of the probation period and that period has expired, the employer has no legal right to unilaterally extend it, and any purported extension would be unlawful.

Finally, the relationship between probation and fixed-term contracts was addressed in Chantelle Conti vs Pizza by Luca Ltd, decided on 6 May 2013, where the Industrial Tribunal held that where such contract is renewed for the same functions and tasks, the renewal does not give rise to a fresh probationary period. It clarified that although the two contracts in question were 'back to back' and with the same employer, the nature of the work differed, and for that reason they were considered two different contracts of service, each capable of attracting its own probationary period.

Procedural Considerations and Enforcement

An employee who considers that dismissal during the probationary period was unlawful may present a claim before the Industrial Tribunal within four months of the date of dismissal, pursuant to the procedural rules under the EIRA. The Tribunal has jurisdiction to award compensation or reinstatement in certain circumstances.

In practice, documentary evidence is critical in probationary dismissal cases. Employers are well-advised to maintain contemporaneous records of performance concerns, appraisal meetings, warnings, and any feedback given to the probationary employee. Employees, conversely, should retain copies of any positive feedback, contractual documents, and records of any complaints made, since these may be highly relevant to any subsequent Tribunal claim.

Comparative Note: EU Influence and Reform Trends

Directive (EU) 2019/1152 on Transparent and Predictable Working Conditions, which Malta transposed by 2022, introduces a general principle that probationary periods must be of a reasonable duration commensurate with the nature and complexity of the role. The Directive also provides that where an employee has been absent during the probationary period due to illness or leave, the probationary period shall be extended proportionately. According to Article 8 (3) of the Directive, where the worker has been absent from work during the probationary period, Member States may provide that the probationary period can be extended correspondingly, in relation to the duration of the absence. These principles have been integrated into Maltese law and reflect a convergence towards greater predictability and fairness in employment relationships at the outset. Article 36 (1c) of EIRA states that the probationary period shall be suspended in the case of any two (2) weeks or more of approved leave, whereupon the probationary period shall be extended to a corresponding duration of the leave. It shall be unlawful for an employer to dismiss a worker during the period of suspension of probation.

Conclusion

Probation in Maltese employment law occupies a carefully calibrated position between employer flexibility and employee protection. The statutory framework under the EIRA, as enriched by EU-derived principles, sets clear limits on the duration and terms of probationary periods.

For employers, the key lessons from the case law are: document performance concerns contemporaneously; communicate deficiencies clearly to the probationary employee; ensure that no offer of permanence or positive feedback is given that undermines a subsequent dismissal; and be especially vigilant about dismissals that coincide with the exercise of statutory rights or the disclosure of protected characteristics. For employees, the probationary period is not a legal wilderness: fundamental rights in areas of discrimination, maternity, notice, and wages remain fully intact, and the Tribunal is a readily accessible forum for the vindication of those rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.