Employment Law – Can a self-employed individual be considered as an employee?

Self-employment in Malta is regulated by the general laws on trade and commerce but does not enjoy any protection from employment laws.

According to the Employment Status National Standard Order[1], an individual providing a service through a service agreement, may in fact be considered as an employee of the individual/organisation to whom the service is being rendered. The above-mentioned national standard order requires the individual providing the service to fulfill five out of eight of the below criteria in order to be considered as an employee and not as self-employed:

• 75% of the individual’s entire income over a period of one year is derived from one person and hence, the individual depends on one person for the majority of his work income,
• One person is responsible to manage the tasks and work of the individual,
• The individual carries out his/her duties using the equipment and material of the person for whom the service is being provided,
• The individual’s working schedule is provided by the person for whom the service is provided,
• The individual may not assign his duties related to the services provided to another,
• The individual has integrated in the structure of the production process, the work organisation or the company’s or other organization hierarchy,
• The individual’s input is considered of high importance and pivotal in the organisation’s business trajectory,
• The individual’s employment duties are similar to those of current and/or ex-employees.

Should the relevant individual satisfy at least five out of the above eight criteria to be considered as an employee, either the individual him/herself or the person for whom the service is being carried out may submit a written request to the Industrial and Employment Relations’ Director requesting for the relationship between the Parties to be/not be considered as one of employment. It is within the Director’s discretion to accept, reject or request further information as it is deemed fit.

Needless to say, should the Director accept the request for the individual to be considered as an employee, the Employer shall then provide the then Employee with all the basic Employment conditions as per Maltese Law and the Employee would then need to be provided protection under the EIRA[2].

Should the individual be considered as an employee by virtues of this National Standard Order, the Employee would then be considered as having been in employment with his Employer from the date where the continuous provision of services commenced. Furthermore, the employment relationship would be considered as an indefinite one, unless otherwise agreed between the Parties in writing.

[1] Subsidiary Legislation 452.108 – Employment Status National Standard Order – Laws of Malta 

https://legislation.mt/eli/sl/452.108/eng/pdf 

[2] Chapter 452 – Employment and Industrial Relations Act – Laws of Malta 

https://legislation.mt/eli/cap/452/eng/pdf

About the Author

This article has been authored by Dr. Bjorn Camilleri, Regulatory & Business Advisor. For more information, he may be contacted on info@csbgroup.com.