Switching Gears: The Rules on Transitioning from one form of employment to another

Authors: Ann Bugeja & Christine Borg Millo

In an employment relationship, it is the duty of the employer to offer and promote the transition of employment of their employees to more secure forms of employment in accordance with the principles established in the European Pillar of Social Rights. In this respect, article 12 of Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union discusses the concept of conversion from one employment type to another, wherein the law states:

1.   Member States shall ensure that a worker with at least six (6) months’ service with the same employer, who has completed his or her probationary period, if any, may request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply. Member States may limit the frequency of requests triggering the obligation under this Article.

2.   Member States shall ensure that the employer provides the reasoned written reply within one (1) month of the request. With respect to natural persons acting as employers and micro, small, or medium enterprises, Member States may provide for that deadline to be extended to no more than three (3) months and allow for an oral reply to a subsequent similar request submitted by the same worker if the justification for the reply as regards the situation of the worker remains unchanged.

This rule has also been transposed Transparent and Predictable Working Conditions Regulations (Subsidiary legislation 452.126 of the laws of Malta), by virtue of article 14.

In terms of transitioning from one form of employment to another, such as transferring from full-time employment to part-time employment, the following rules therefore apply:

1. Expiry of probation: The applicable probationary period must have already expired. In this respect, one must note that whereas the probationary period for an indefinite contract is normally that of six (6) months for standard employees or twelve (12) months for employees who hold a technical, executive, managerial or other administrative role, definite term contracts hold different probationary period terms dependent upon how long the fixed term of the contract is;
2. Six (6) months continuous employment: The employee must have been in continuous employment for at least six (6) months’ service with the same employer;
3. Formal request: The employee must send a request to the employer in order to transition from one employment type to another;
4. Transition availability: The request can only be made by the employee and considered by the employer where the shift, conversion or transition is, or readily becomes, available. When it is not available, the employer has every right to reject the request made; and
5. Reasoned written reply: Following receiving the request, the employer must provide a reasoned written reply to the employee, including the outcome of the decision, within one (1) month of the request. The latter may however be extended to a maximum amount of three (3) months. If the extension by the employer ensues, the employer is permitted to submit an oral reply instead of a written reply after the first written request was made.

From the legislation which became applicable to all employment relationships from the 1^st of August 2022, some lacunas emerge. Firstly, the provision does not specify what the form of the request to be made by the employee should be. Therefore, the law implies that any type of request, whether written or oral, may be made. However, it is always recommended that any request made by the employee be carried out in writing since it may constitute evidence in any future claims which may arise. Conversely, the provision confirms that the reply made by the employer must be made in writing, which presupposes that the request made by the employee should too, be made in writing.

Secondly, although the provision is not clear in this regard, it emerges that all the aforementioned listed conditions must be duly satisfied for the conversion of employment from one form to another to adequately take place in terms of law. Should all the conditions be satisfied,  the employer has an obligation to convert the employment only if it there is available room for transition. If the requirements are however not all satisfied, or where there is no availability for the conversion, the employer must provide the employee with a written reply within one (1) month, explaining the justifiable reasons for which the conversion cannot take place.

The article does not delve into what an appropriate reason for the non-conversion of employment necessitates. Yet some examples could be for instance, the fact that the volume of work to switch from a definite term contract to indefinite term is insufficient or where the existence of a long-term task no longer exists and therefore an indefinite term contract would not be required. Furthermore, the law neither defines the meaning for when an employee can request a form of employment and working conditions which are ‘more predictable and secure’. Hence, this leaves it up to the discretion of the parties to agree on the conversion of employment, which is determined on a case-by-case basis.

Therefore, when an employer is in a situation where he/she wishes to carry out the conversion of employment or else an employee requests for their employment to be converted, it is important that all considerations are properly taken into account. This leans towards enhancing employment protection and promoting more stable employment arrangements in the employment relationship between an employer and employee.