The year 2020 was a challenge for all, including the Industrial Tribunal. Sittings before the tribunal were suspended for a substantial amount of time during 2020 due to the COVID-19 pandemic, naturally resulting in delays; however, several pending claims were concluded.

Under Maltese law, the Industrial Tribunal need not provide a detailed rationale behind a decision (it is enough for the tribunal to indicate that it considered all of the evidence presented) or regarding the basis on which damages have been liquidated, which leads to many uncertainties. Historically, many decisions would express only a high-level consideration of the facts and a brief decision upholding or rejecting the claim with a quantum of compensation, if any.

However, when determining compensation, the Industrial Tribunal tends to consider factors such as:

  • the period that an individual remained unemployed following an unjust dismissal;
  • the length of the employment relationship between the employee and employer; and
  • any reduction in earnings on new employment.

In recent years, there has been an apparent upwards trend in compensation being granted to successful plaintiffs, thereby significantly increasing the risks for employers, and 2020 was no exception. In some decisions, the Industrial Tribunal ventured into somewhat new territory, encouraged also by Court of Appeal judgments which called for more diligence and attention to detail, particularly when a claimant presents evidence of damages which goes unchallenged.

The total average of compensation in cases won by plaintiffs in 2020 (ie, more than €26,500) is more than double that of 2019. The lowest amount granted to a successful plaintiff was €800, while the highest amount was €140,000. For example, the tribunal awarded €74,600 to an employee who was found to have been unfairly dismissed on the premise of a sham redundancy (pre-COVID-19).

The consequences of the COVID-19 pandemic are still ongoing and 2021 continues to put employers to the test. Claims relating to measures implemented by employers as a reaction to COVID-19 are starting to emerge. How the hardships brought about by the pandemic will affect compensation awarded by the Industrial Tribunal is yet to be seen. However, the tribunal will likely not go easy on employers that are perceived to have dishonestly exploited the pandemic to the detriment of employees.

It is no secret that success in the Industrial Tribunal, as with any litigation suit, is never guaranteed. Consequently, advice should be sought at the outset prior to action being taken or otherwise, as this could end up saving a client a lot of time and expenses down the line.