Many employers underestimate the importance of attributing the correct legal status to individuals who provide services or carry out work for them. Engaging third party self-employed independent contractors is a common occurrence, but there is a lack of awareness of the existence of Maltese legislation which seeks to regulate the determination of the legal status of such contractors, in certain cases elevating their status to that of employees.
A nominally self-employed independent contractor may be legally presumed to be an employee in an employment relationship with his employer if at least five of the following criteria are satisfied in relation to the person performing the work:
Should at least five of the abovementioned criteria, provided for in Subsidiary Legislation 452.108 of the Laws of Malta, be satisfied, the entire employment legislative and regulatory framework – including minimum statutory conditions of employment – would apply to the relevant engagement, such that the contractor providing his work or services would be deemed as being an employee of the person to whom such work or services are provided.
If a person was initially considered to be performing services as a self-employed person, and is subsequently found to be an employee on the basis of the above criteria, such person will be considered as an employee of the person for whom he was providing services on an indefinite employment contract and on a full-time basis.
The date of engagement on an indefinite contract would be considered to be the date on which the deemed employee would have commenced the provision of his services, and the seniority and any notice due in case of an eventual redundancy would be computed accordingly.
The employer would also be required to give the employee a letter of engagement or a signed statement setting out the same information and terms as a normal contract of employment would be required to state.
If an employee does not agree with any of the employment conditions set out in such letter of engagement or signed statement, or the amount of wages being proposed by the employer, and leaves the employment, such employee may institute proceedings before the Industrial Tribunal where he may claim unfair dismissal.
Consideration would also need to be given by the employer to fulfil his tax and social security payment obligations, particularly since the employer is liable to pay tax and social security arrears (and interest thereon) relating to any period preceding the confirmation of the relevant employment relationship.
If an engagement is deemed as giving rise to an employment relationship due to the satisfaction of at least five of the criteria described above, any party to the proposed engagement may, before entering into such a relationship, submit a written request to the Department for Industrial and Employment Relations (or DIER) to exempt such an engagement from being considered to be an employment relationship.
The DIER may issue such exemption if it considers that there are particular grounds relating to that activity to exempt it from this requirement, including that the activity being carried out is an uncommon occurrence or of very short duration.
Any conversion of an employment contract into a contract for service can only have legal effect if it is authorized by the DIER. Until such authorization is obtained and if it is refused once sought, the employment status of the person concerned would be considered to be unchanged and would be the same as that enjoyed prior to the request for authorization.
At Empleo, we can help employers obtain a better understanding of the scope and extent of the employment legislative and regulatory framework that may be applicable to them.
Some of our services in this area include the following:
You may get in touch with us here to request an initial free legal consultation in relation to any of the matters outlined above.
Mariella graduated from the University of Malta with a doctorate in law in 2005. She completed a master’s degree in ‘European Private Law’ from the La Sapienza, University of Rome, and was admitted to the bar in Malta in 2006.
Mariella is a people person – and it is this attribute which has really characterised and shaped her career.
Over the years, she headed the legal departments of several corporate services firms. Due to her skillset, she was also entrusted with managing and overseeing operations and human resources, where she gained technical and practical experience in various corporate, commercial and employment matters.
Her practical hands-on experience and insight perfectly complement Mariella’s technical knowledge of employment law, thus placing her in an ideal position to understand and advise employers and employees alike on various matters that may arise at the workplace.
Mariella is passionate about employment law matters and provides her clients with the highest-quality legal service to achieve the best possible outcome and resolve any employment law related issues and concerns.
Bradley graduated Doctor of Laws from the University of Malta in 2005 and was admitted to the Bar in Malta in 2006. He advises clients on various corporate, commercial, employment and regulatory matters, with particular focus on company and financial services law.
He has assisted clients in various corporate and commercial matters by providing company law advice and assisting in the implementation of corporate finance, restructuring, mergers and acquisitions and similar transactions.
Bradley has also advised and assisted investment funds, fund managers and other investment services providers, banks and financial institutions, on various legal and regulatory matters relating to the setting up, authorisation and ongoing conduct of their activities in Malta.
His practice also covers general employment law matters. Bradley’s experience in company and financial services law enables him to focus on various corporate and regulatory aspects of employment relationships. In particular, he advises organisations on the implementation of employee share option and participation schemes, the implications of business transfers on employment relationships, as well as relations with senior employees.
Karl graduated Doctor of Laws from the University of Malta in 2005 and was admitted to the Bar in Malta in 2006.
Karl has gained considerable expertise in technology law and regularly assists clients in relation to intellectual property issues, commercial contracts and ways to ensure compliance with the General Data Protection Regulation (GDPR) and privacy laws. Whilst such matters used to be only given incidental importance when dealing with employment matters, they are now widely acknowledged to be vital in all employment relationships.
He is also regularly engaged by C-level executives to assist in negotiating employment contracts and settlement agreements.
Karl advises across a multitude of industries including technology; marketing; adtech; financial services; gaming; esports; consumer products; and media and telecommunications.