A comparative analysis of the concept of redundancy in employment and kindred consequences between Maltese law and UK law

Abstract

Dismissal in the work place is one of the most challenging scenarios an employer and/or employee can face, including in cases of redundancy. Maltese law, contrary to other jurisdictions, does not attempt to define the notion of redundancy, and thus recourse is made to the decisions of the Industrial Tribunal and to industrial practice. This dissertation examines the notion of selection for redundancy through the application of ‘Last In, First Out’, and the lack of statutory severance pay in Malta. Furthermore, a comparative analysis is carried out between the local system and that adopted in the United Kingdom, whereby redundancy procedures are based on a selection against a set of criteria, most notably the employee’s performance, rather than on LIFO. Emphasis is placed on how the respective legal instruments – the Employment and Industrial Relations Act in Malta, and the Employment Rights Act (1996) in the United Kingdom – differ, namely in defining the term, and how codes of practice such as those laid down by the Advisory, Conciliation and Arbitration Services in the UK can enhance Malta’s redundancy practice, by providing specific guidelines for both the employer and the employee. This dissertation also examines the claims brought before the tribunals in the respective jurisdictions, and the awards granted in this respect through a comparison of case law. Finally, this dissertation concludes by presenting proposals and recommendations as to how the Maltese system may assimilate principles utilised in the United Kingdom in order to achieve a more modern and equitable redundancy system.