Handling Disciplinary Actions in Malta: A Practical Guide for Employers

Effectively managing employee conduct and performance is a critical task for any business operating in Malta. Situations inevitably arise where disciplinary action becomes necessary due to misconduct or persistent failure to meet required standards. It's vital to understand that navigating this process correctly isn't just about good management practice; it's a legal requirement under Maltese Employment Law.

Specifically, employers must adhere to the Employment and Industrial Relations Act (EIRA) and the principles established by the Industrial Tribunal. Getting disciplinary procedures wrong can expose your business to claims of unfair dismissal, potentially leading to significant financial penalties and damage to your company's reputation. This guide provides a practical framework for handling disciplinary actions effectively and lawfully within the Maltese context.

The Foundation: Clear Rules and Open Communication

A solid foundation is essential before any disciplinary issue even surfaces. Your organisation must have a clear, written disciplinary procedure. Ideally, this should be part of the employee handbook. This policy needs to outline expected standards of behaviour, define different types of misconduct (including examples of minor, serious, and gross misconduct), and clearly detail the steps the company will take when addressing disciplinary matters. Crucially, ensure every employee has access to this policy and is aware of its contents.

Navigating Challenging Conversations: Business leaders face the inevitability of disciplinary matters.

Alongside formal policies, foster an environment of open communication where expectations are clear, and feedback is given regularly. Addressing minor concerns informally and promptly through simple dialogue can often prevent issues from escalating. However, it's equally important that managers are trained to recognise when a situation crosses the line and requires formal action as dictated by your established policy.

The Maltese Disciplinary Process: Key Steps

When a situation arises that may warrant formal disciplinary action, follow these legally compliant steps carefully:

1. Identify the Issue & Establish Legal Grounds

First, clearly identify the specific performance issue or the alleged misconduct. Vague accusations are insufficient grounds for formal action. Remember that under the EIRA, any disciplinary action, especially dismissal, must be justified by a "good and sufficient cause." This typically involves proven misconduct (a breach of rules or standards) or sustained poor performance (normally after warnings and a fair chance to improve). Note that redundancy, while a reason for termination, follows a separate legal process and isn't considered disciplinary.

2. Conduct a Thorough and Objective Investigation

Next, conduct a preliminary investigation to gather all relevant facts. This might involve reviewing performance records, attendance logs, relevant emails, or collecting witness accounts if applicable. If using CCTV footage, ensure your process complies with GDPR. Approach this fact-finding mission objectively and impartially, focusing on establishing what happened rather than confirming pre-existing assumptions. Maintain confidentiality throughout the investigation to protect everyone involved.

3. The Disciplinary Hearing: Ensuring Procedural Fairness

The disciplinary hearing is a critical stage governed by the principle of procedural fairness, a cornerstone of Maltese employment law. Failures at this stage are a common reason for successful unfair dismissal claims. You must inform the employee in writing about the specific allegations. This formal notification should clearly state the alleged issue, reference the policy breached, provide copies of evidence, and state the hearing's date, time, and place.

Crucially, allow the employee adequate time (usually several working days) to prepare their response. Most importantly, the notification must explicitly inform the employee of their right to be assisted or represented at the hearing by a person of their choice, such as a union official, lawyer, or even a colleague.

During the hearing, held privately, explain the allegations clearly. Give the employee a full opportunity to respond, present their side, ask questions, and offer mitigating circumstances or evidence. Keep detailed, accurate minutes of the meeting, ideally signed by attendees as a true record.

4. Deliberate and Decide on Appropriate Action

After the hearing, carefully consider all the information: the investigation findings and the employee's responses. The decision on disciplinary action must be reasonable and proportionate to the offence. Consider the seriousness of the issue, the employee's record and service length, any mitigating factors, and ensure consistency with past handling of similar cases.

Possible actions range from taking no action if allegations are unfounded, to informal counselling, documented verbal warnings, first written warnings, or a final written warning. Dismissal should typically follow previous warnings, unless the situation involves proven gross misconduct justifying summary termination.

5. Communicate the Decision Clearly and Formally

Communicate the final decision to the employee in writing without undue delay. This letter must be clear, stating the decision reached and the reasons for it, linking back to the specific issues and evidence discussed. It should specify the disciplinary action being taken, its effective date, and any required improvement plan or future expectations. You may offer the right to appeal however this is not compulsory and it is for the company to decide if they wish to have this step in their disciplinary procedure.

6. Monitor Progress and Provide Support (If Applicable)

If the outcome involves a warning or an improvement plan, it's important to monitor the employee's progress through scheduled follow-up meetings. Offer necessary support, such as additional training or guidance, to help them meet the required standards, and be sure to document these supportive efforts.

A fair disciplinary process is key.

Why Compliance Matters: Documentation and Consistency

Meticulous documentation is non-negotiable throughout the entire process. Keep detailed written records of everything: investigation notes, invitation letters, hearing minutes, warning letters, the final decision letter, and any follow-up notes. This paperwork is your primary defence should a case reach the Industrial Tribunal.

Equally important is consistency. Apply your disciplinary procedures uniformly across all employees and situations to avoid accusations of discrimination or unfairness, which can undermine the entire process and damage workplace morale.

A microphone stands ready in a tribunal hall where cases of unfair dismissal are heard, with a Tribunal Chairperson presiding over the proceedings.

Final Thoughts

Handling disciplinary actions correctly in Malta goes beyond general notions of fairness; it requires strict adherence to the procedures mandated by Maltese employment law and the principles upheld by the Industrial Tribunal. By implementing clear, compliant written policies, rigorously ensuring procedural fairness (especially the right to representation), acting proportionately, and documenting every step meticulously, you protect your business while treating employees lawfully.

If you encounter complex situations or feel unsure about the correct procedure, don't hesitate to seek advice from legal professionals specialising in Maltese employment law. It's always a prudent investment.

Want to delve deeper into handling conflicting accounts during workplace investigations? Join our upcoming webinar, "He Said, She Said," on May 8th, 2025. We'll explore practical strategies for navigating these tricky situations. Book your place now!