MALTA Law and Practice Contributed by: Paul Gonzi, Rebecca Diacono and Mattea Pullicino, Fenech & Fenech Advocates
Therefore, such clauses must be specific in that they must refer to an objective, a time and a place. Should a clause be too vast or too vague, then one might argue that this would be going over and above its orig - inal scope, that being the protection of the employer and the business. The courts have also often highlighted that the employer would need to prove that a loss was or would have been incurred due to the ex-employee moving to a competitor. 2.2 Non-Solicits Non-solicitation clauses effectively seek to prohibit an ex-employee from soliciting clients of the employer and/or from soliciting other employees/workers of the employer to terminate their employment with the employer. In a similar manner to non-competition clauses, in order to be enforceable, non-solicitation clauses must form part of a contract of employment or be included in a side letter signed by the employee. Non-solicitation clauses are relatively common in con - tracts of employment governed by Maltese law and may be enforced through judicial proceedings in so far as they are deemed to be reasonable. The courts have generally interpreted such clauses restrictively and have emphasised that the limitation of time and market imposed have to be reasonable, taking into account Malta’s small size and its relatively limited market. The non-solicitation of clients is more likely to be enforced than the non-solicitation of employ - ees (as, on occasion, the courts have suggested that employees cannot be treated as assets of a company). The Maltese courts have enforced clauses that pro - hibited a former employee from working with a client of the employer. 3. Data Privacy 3.1 Data Privacy Law and Employment Protection of privacy rights is enshrined in the Con - stitution of Malta as well as the European Convention Act (Chapter 319, Laws of Malta), which transposes the European Convention for the Protection of Human Rights and Fundamental Freedoms into Maltese law.
Data protection is primarily regulated by the EU Gen - eral Data Protection Regulation (GDPR), together with the Data Protection Act, Chapter 586 of the Laws of Malta and subsidiary legislation enacted thereunder. Except for some basic rules on the processing of per - sonal data in the context of teleworking, which were enacted prior to the GDPR, the Maltese legislature has so far not enacted any data protection law specific to the employment sphere, in that no laws expressly reg - ulating the processing of personal data in the employ - ment context and/or which affect the privacy rights of employees, have been enacted. Therefore, the stand - ard data protection principles and rules apply to the employment context. Generally, as data controllers, employers are likely to rely on the legal grounds of performance of a contract, a legal requirement or legitimate interest (provided that such interest is not overridden by the rights of others) in order to process employee data. Employers must essentially ensure that they are pro - cessing data in accordance with the principles under - lined in the GDPR, namely: • lawfulness, fairness and transparency;
• purpose limitation; • data minimisation; • accuracy; • storage limitation; • integrity and confidentiality; and • accountability.
As data subjects, employees enjoy a degree of privacy and may take advantage of the various rights granted to data subjects under the GDPR. Such rights are not absolute in nature and are subject to certain limita - tions.
4. Foreign Workers 4.1 Limitations on Foreign Workers EU/EEA/Swiss Nationals
EU/EEA/Swiss nationals and their family members, as defined, may take up employment and/or self- employment in Malta in the exercise of their EU Treaty
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