Maternity Rights
The Protection of Maternity (Employment) Regulations [S.L. 452.91] (hereinafter "the Regulations") have the aim of laying down the minimum requirements to safeguard the employment rights of pregnant employees, employees who have recently given birth and breastfeeding employees, thus facilitating improvements in the health and safety of these employees at the workplace and to give effect to the relevant provisions of Council Directive 92/85/EEC. Additionally, the Employment and Industrial Relations Act (hereinafter "the Act") provides for a number of safeguards for these employees as well as a number of obligations and prohibitions placed on employers in this regard.
Which Employees do the Regulations seek to protect?
Prior to delving into the rights and obligations involved, a distinction must first be made between the individuals which the Law refers to i.e. a "breastfeeding employee", an ''employee who has recently given birth'' and a ''pregnant employee''.
According to the Regulations, a "breastfeeding employee" is
"an employee who is breastfeeding during a period of up to twenty-six weeks after her date of confinement and who has informed her employer of her condition by means of a certificate issued by a registered medical practitioner or midwife."
Meanwhile an ''employee who has recently given birth'' is
"an employee who has formally informed her employer of her condition by means of a certificate issued by a registered medical practitioner or midwife, and whose date of confinement was:
(a) not more than fourteen weeks before in the case of a stillborn child, and
(b) not more than twenty-six weeks before in the case of alive birth;"
Correspondingly, a "pregnant employee'' is
"an employee who informs her employer in writing of her pregnancy and who subsequently, within fifteen days, formally informs her employer of her pregnancy and of the expected date of confinement by means of a certificate issued by a registered medical practitioner or midwife".
Maternity Leave and its Duration
In Malta, maternity leave is a protected right for pregnant employees, ensuring they have time off work before and after childbirth. In fact, a pregnant employee can take 18 weeks of maternity leave, with a minimum of four (4) weeks' prior notice to be given to the employer. Such notification to the employer must be done in writing and the pregnant employee must also refer to the date on which she intends to start her leave.
This leave is paid, with the first fourteen (14) weeks being covered by the employer and the remaining (four) 4 weeks paid through government social benefits.
Rights and Obligations under Maltese Law
An employer must protect the job and wages of a pregnant or breastfeeding employee if measures are needed to safeguard her health, following a risk assessment. These measures may involve adjusting her working conditions or reassigning her to suitable alternative duties if necessary. If the employee refuses a reasonable alternative job without justification, she may lose her right to special maternity leave pay.
If the employer cannot provide adequate protection even after following safety regulations, the employee is entitled to special maternity leave, along with an allowance equivalent to the sickness benefit. Once the risk no longer exists, the employer should make efforts to reinstate the employee to her previous role or a similar one.
If an employee on special maternity leave is no longer at risk or stops breastfeeding, she must inform her employer in writing. The employer is then required to reinstate her, and the special maternity leave ends either within seven (7) days of notification or earlier if the employee returns to work. Additionally, the employer must notify the employee when it is safe to return if the risk has been resolved during the leave.
While on maternity leave or special maternity leave, the employee is considered to be employed by the employer and is entitled to all rights and benefits enjoyed by other employees in the same role, including the opportunity to apply for promotions. Upon returning to work, she is entitled to her original position, or if that is not feasible, to equivalent or similar work in line with her initial employment contract.
During this leave, however, the employee is not entitled to any performance or production-related bonuses or allowances.
Ante Natal Visits
A pregnant employee is entitled to time off without loss of pay or any other benefit, in order to attend ante-natal examinations, if such examinations have to take place during her hours of work. The employer may request documentation to show the appointment times or attesting to actual attendance for such examinations.
Night Work
An employee's rights, including her wages, must be upheld if an employer receives a medical certificate stating that she should not work night shifts during pregnancy or breastfeeding due to health and safety concerns. The employer is obligated to transfer her to daytime work in line with the Occupational Health and Safety Authority Act.
If transferring the employee to daytime work is not technically or objectively possible, or cannot be reasonably required, the employer must grant her special maternity leave, as outlined above.
Overtime
Regardless of what may be stated in any other law, regulation, collective agreement, or employment contract, employees are not required to work overtime in the following circumstances:
(a) During pregnancy;
(b) For twelve (12) months following the birth of a child or the adoption date.
The Law also specifies that this right is non-transferable.
Employees on a Fixed Term Contract
An employee on a fixed-term contract also benefits from the same rights outlined in the Regulations. However, if, at the employer's discretion, her contract is not extended sufficiently to allow her to work for six (6) months from resuming work, she will not have to repay the wages received during maternity leave.
Protection from Dismissal
Employers cannot lawfully dismiss a pregnant employee, one who has recently given birth, or a breastfeeding employee from the moment she provides a medical certificate confirming her condition until the end of her maternity leave or any special maternity leave. This rule stands unless the dismissal is justified under specific articles of the Act.
If there is valid cause for dismissal, the employer must provide written grounds for termination and send a copy of this notice to the Director General responsible for Employment and Industrial Relations.
For employees on probation:
- If a pregnant employee has not completed her probation by the time she begins maternity leave, the probation is automatically suspended until she returns to work.
- If special maternity leave is granted before the probation period is completed, the probation is also suspended until she returns.
- If an employer dismisses a pregnant employee during probation, they must provide written reasons for the dismissal, demonstrating that it is unrelated to her condition. If the employer fails to provide such reasons, the employee can appeal to the Industrial Tribunal for unfair dismissal.
An employee will be considered unfairly dismissed if the main reason for termination is related to her refusal to comply with the employer's unlawful requirements or her refusal to give up rights conferred by the Regulations.
In this regard, reference shall be made to the Industrial Tribunal's decision of Victoria Dougall vs. Diane Abela Ganza Shopping Centre1.
The plantiff was an employee working for the respondent company and upon finding out she was pregnant she asked to speak with her Manager, to discuss how her employment would be affected since her job involved her lifting heavy items.
Whilst under the circumstances, the employee was placed on 'cash duty' a number of times, following an argument, she was dismissed via text message, whereby she was specifically told that the company does not need any pregnant women working there.
The Tribunal held that this amounted to an unfair and unlawful dismissal and awarded the employee damages.
Footnote
1 Case Number 3382/CC, 4th July 2018
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.