ARTICLE
2 September 2021

Part 1 Of A 2 Part Series On Leave Entitlement For Working Parents

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Fenech Farrugia Fiott Legal

Contributor

Fenech Farrugia Fiott Legal is a Malta-based law firm which provides a comprehensive range of services to the highest calibre of individuals and businesses. Its clients are sophisticated and dynamic and this is reflected in the way that the team challenges the conventional, and strives for excellence at every opportunity. The firm has a wealth of experience representing clients in a broad spectrum of specializations. Its partners, associates and consultants are all practising lawyers who work within the different practice areas.
The current statutory conditions and requirements for parental leave are established under the Parental Leave Entitlement Regulations, Subsidiary Legislation 452.78 ("S.L. 452.78" or the "Regulations").
Malta Employment and HR
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The current statutory conditions and requirements for parental leave are established under the Parental Leave Entitlement Regulations, Subsidiary Legislation 452.78 ("S.L. 452.78" or the "Regulations"). These Regulations provide that, both male and female employees, irrespective of whether they are engaged on a whole-time or part-time basis, or whether they are employed under a fixed or indefinite term contract1, are entitled to parental leave. Parental leave is granted on grounds of birth, adoption, fostering or legal custody of a child2, enabling employees to care for their child for a period of four (4) months, which period can be availed of in established periods of one (1) month, until the child has attained the age of eight (8) years.3

The manner in which the leave is utilized is left to the discretion of the employer and employee (the "Contracting Parties"), unless otherwise provided for by means of a collective agreement. There are various ways in which the leave can be used, for instance it may be granted on a full-time or part-time basis, in a piecemeal manner or in a form of time credit system.4 Furthermore, it should be noted that parental leave is granted on a non- transferrable basis. Having said this, in the event that parental leave is not availed of by the employee, or there is existing balance, an employee shall remain entitled to such leave even if there is a change in the employer or employment of the employee. This is only applicable insofar as the employee satisfies the criteria noted hereunder in the following paragraph.

It is worth noting that, employees are not entitled to parental leave unless they have been in employment with an employer for a continuous period of twelve (12) months. This condition applies only insofar as the Contracting Parties do not agree to more favourable conditions, thereby reducing the twelve (12) month period to the benefit of the employee.

The Regulations provide that prior to utilizing parental leave, the employee is bound to give his/her employer a minimum of three (3) weeks' notice in writing, specifying the commencement and the end of the parental leave being availed of. Similarly, this notice may also be given even during the period established under article 36 (20) (Employment and Industrial Relations Act, Chapter 452 of the laws of Malta) (the "Act"). Therefore, whilst the aforementioned law restricts female employees from terminating their employment within the six (6) month period from resumption of work, the Regulations provide for an exception allowing such employees to submit a notice requesting paternity leave.5

The employer has a right to postpone parental leave only for justifiable reasons, as provided for under regulation 7 of S.L. 452.78 which inter alia include situations where work carried out at the place of business is seasonal or the work carried out by the employee requesting parental leave is of strategic importance to the undertaking of the business. Postponement of parental leave is possible insofar as the employer provides the employee with a written notice two weeks in advance. Additionally, the employer in terms of regulation 9 (3) of S.L. 452.78, has a right to suspend or to request the employee to return to work before the agreed date of resumption of duties only if the Contracting Parties so agree to such condition. In absence of such agreement, the employee may refuse to return to work prior to the agreed date of resumption of duties.

Employees on parental leave are entitled to all rights and benefits which may accrue in favour of other employees of the same class or category of employment at the place of employment, including the right to apply for a promotion. This is however not absolute, and subject to certain limitations. In terms of regulation 9 (2) of S.L. 452.78, employees on parental leave are not entitled to leave, bonuses or allowance that would have otherwise accrued in favour of the employee during the time for which s/he was on parental leave. Furthermore, employees who are eligible for parental leave are also eligible to additional rights including the right to request a change in working hours and patterns for a specific period of time, as well as additional obligations. These are binding on the Contracting parties and include the obligation to maintain communications, as well as make arrangements to facilitate the re-integration into the workforce.6

Similarly, to the protection afforded to female employees who avail themselves of maternity leave under the Protection of Maternity (Employment) Regulations, Subsidiary Legislation 452.92, employees availing themselves of parental leave cannot be dismissed from the work force simply for utilizing their leave entitlement. In any such occurrence, the dismissal shall not constitute a valid reason for termination as provided for under the Act and ma, by recourse before the competent authorities, seek redress for dismissal.

Part 2 of this series shall delve into the proposed amendments that are expected to be implemented within our national employment law framework as a result of the Work-Life Balance Directive.

Footnotes

1. Reg. 3 (S.L. 452.78)

2. Adoptive and/or foster parents are required to present their employer with evidence (legal proceeding documents and certificate and other official documents from the competent authority) in order to be able to avail themselves of this is entitlement

3. Reg. 4 (S.L. 452.78)

4. Reg. 4 (3) (S.L. 452.78)

5. Reg.6 (2) S.L 452.78

6. Reg. 9A (S.L. 452.78)

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.

ARTICLE
2 September 2021

Part 1 Of A 2 Part Series On Leave Entitlement For Working Parents

Malta Employment and HR

Contributor

Fenech Farrugia Fiott Legal is a Malta-based law firm which provides a comprehensive range of services to the highest calibre of individuals and businesses. Its clients are sophisticated and dynamic and this is reflected in the way that the team challenges the conventional, and strives for excellence at every opportunity. The firm has a wealth of experience representing clients in a broad spectrum of specializations. Its partners, associates and consultants are all practising lawyers who work within the different practice areas.
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