Court of Appeal Decides on the Contractual Exclusion of Probation

The Court of Appeal has delivered an important judgment for Maltese employment law on the treatment of probationary periods in employment contracts, particularly where the parties have expressly agreed that probation is not applicable.

In John Oliver George Taylor v In My Mind Limited, decided on 17 June 2026, the Court of Appeal considered whether an employer could rely on a statutory probationary period when the employment contract itself stated that the probation period was “N/A”.

The appellant had been engaged as Chief Executive Officer on 1 December 2022. His contract expressly recorded: “Probation Period: N/A”. Notwithstanding this, his employment was terminated in March 2023 and the Jobsplus termination form described the termination as one made during probation. The Industrial Tribunal accepted that position and held that the dismissal was lawful, on the basis that the probationary period could not be omitted.

On appeal, the appellant, represented by Ten Yards Legal lawyers Dr Roselyn Borg and Dr Patrick Farrugia, argued that the Tribunal had made an error of law. The argument was that the contract did not merely fail to include a probation clause. Rather, it expressly excluded probation. Consequently, the employer could not later rely on a default statutory probationary period to justify the termination.

The Court of Appeal accepted this argument.

A key issue before the Court was which version of the law applied. The Court held that the applicable provision was Article 36(1) of the Employment and Industrial Relations Act as it stood at the date when the employment contract was entered into, and not the version introduced by a later legislative amendment.

At the time, Article 36(1) stated that:

“Saving the provisions of sub-article (16), the first six months of any employment under a contract of service shall be probationary employment unless otherwise agreed by both parties for a shorter probation period:

Provided  that  in  the  case  of  a  contract  of  service,  or collective agreement, in respect of employees holding technical,executive, administrative or managerial posts and whose wages are at least double the minimum wage established in that year, such probation period shall be of one year unless otherwise specified in the contract of service or in the collective agreement.”

The Court reasoned that the words “unless otherwise agreed” were broad enough to allow the parties to exclude probation altogether. The Court also relied on the principle that the applicable law is the law in force at the time when the legal act is made. A later amendment could not retrospectively alter the contractual position agreed at the commencement of employment.

The Court therefore held that the Industrial Tribunal had been wrong to impose a probationary period by default where the contract had expressly stated that probation was not applicable.

The judgment is significant because it confirms that probation is not merely a statutory technicality to be applied regardless of the parties’ agreement. Where the law allows contractual variation, and where the contract clearly excludes probation, an employer may not be able to rely on probation at a later stage to avoid the ordinary legal requirements applicable to dismissal.

Importantly, the Court of Appeal did not decide whether the dismissal itself was fair on the facts. Instead, it allowed the appeal and referred the case back to the Industrial Tribunal for the merits of the dismissal to be determined.

From an employment law perspective, the decision is a valuable reminder that probation clauses must be drafted with precision. Employers should ensure that contracts accurately reflect the intended probationary arrangement, particularly for senior, executive and managerial employees. Employees, on the other hand, should not assume that a termination labelled as “probationary” is necessarily lawful if the employment contract provides otherwise.

Although the case turned on the wording of the law applicable before the later amendments to Article 36, its broader lesson remains important. Contractual wording matters. Where probation is validly excluded, or where it has expired, an employer must be prepared to justify dismissal by reference to a legally defensible reason.

This decision therefore reinforces a central principle of Maltese employment law: the termination of employment must be assessed not only by reference to statutory rules, but also by reference to the actual contractual terms agreed between the parties.