Legal Framework and Definition
Legal Notice 312 of 2008 Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta) Telework National Standard Order, 2008 (hereinafter referred to as the ‘TNSO’) defines “telework” as a form of organising and, or performing work, using information technology, in the context of an employment contract or relationship, where work, which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis.
Ways to Implement Teleworking and Special Rights to Telework
The ways to implement telework is by written agreement or by agreement in the course of the employment relationship. Therefore, when telework is not specified in the employment contract and is undertaken in the course of employment, the employee is free to accept or refuse an employer’s offer of telework. If the employee expresses the wish to opt for telework, it is in the employer’s discretion whether to accept or refuse such request. No special right is given to a particular employee to telework.
Working Time, Workplace and Duration
The amount of working time to be spent at the place of telework and at the workplace and the location where telework is to be carried out is provided for in the written agreement. Unless a different period is agreed in the written agreement, where both parties agree to a telework arrangement, each party shall have the right to terminate that telework agreement and the employee shall revert to the pre-telework post:
- in the first two months of the telework arrangement, by giving three days’ notice in writing to the other party, and
- after the first two months, by giving two weeks’ notice in writing.
Work Instruments and Expenses
The employer is responsible for providing, installing and maintaining the equipment necessary for the performance of telework and for providing the teleworker with an appropriate technical support facility, unless otherwise agreed upon by the employer and the teleworker in the written agreement. Further details including ownership, maintenance, liability and costs of the equipment used for telework are provided for in the written agreement. Costs for loss, damage to and misuse of equipment and data used by the teleworker are borne by the employer or by the teleworker in accordance with Civil law provisions. The employer shall however compensate or cover the costs relating to communication directly caused by telework.
Rights and Duties
The conditions of employment relating to telework laid down in the contract of employment cannot be less favourable than those laid down in the TNSO which provides that;
- Teleworkers shall enjoy or continue to enjoy the same rights laid down in the Employment and Industrial Relations Act, in the regulations issued thereunder, in an applicable individual agreement or in any applicable collective agreement as comparable employees at the employer’s premises; and
- Teleworkers have the same rights of access and rights to participate in training and career development programmes provided and be subject to the same appraisal policies in the same manner as comparable employees at the employer’s premises.
Data Protection and Privacy
The employer must take the appropriate measures, particularly with regard to software, to ensure the protection of data used and processed by the teleworker in the carrying out of his duties. The employer is required to inform the teleworker of the provisions of the Data Protection Act, Chapter 584 of the laws of Malta and of the measures taken, including any restrictions on the use of IT equipment, internet or other IT tools and any sanction in case of non-compliance. On the other hand, the teleworker must abide by the provisions of the Data Protection Act and by the measures taken by the employer.
The employer must also respect the privacy of the teleworker and may only put in place any kind of monitoring system if this is agreed to by both the employer and the teleworker in the written agreement and such monitoring system is proportionate to the objective and is introduced in accordance with Council Directive 90/270 on the minimum safety and health requirements for work with display screen equipment.
Based on the employer’s general duty of care as well as the obligation at law to protect employees, a failure on the part of the employer to implement the necessary health and safety measures could, potentially result in a breach of health and safety obligations at law and in responsibility for work accidents.
This article was written by Dr Maria Attard.
Disclaimer: This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.