Fixed-term constructive dismissal escapes the half-wages cap
The Court of Appeal holds that article 36(11) does not limit compensation where a fixed-term employee resigns because of the employer’s breaches, and that a resignation letter without protest does not defeat the claim.
On 10 July 2026 the Court of Appeal (Inferior Jurisdiction), Mr Justice Lawrence Mintoff presiding, dismissed an appeal by the Malta College of Arts, Science and Technology against an Industrial Tribunal finding of constructive dismissal. The Court holds that a resignation letter which records no protest does not by itself show that the employee left freely.
It also holds that article 36(11) of the Employment and Industrial Relations Act (Cap. 452), which fixes half the wages for the unexpired term when an employer ends a fixed-term contract early, does not govern compensation for constructive dismissal.
The facts
In E.B. vs Malta College Of Arts Science And Technology, E.B. was employed part-time in the College’s student support services on a three-year fixed-term contract that began in November 2017, with a probation period that was extended while she waited for documents she needed. A deputy principal asked her to give lectures to lecturers and to supervise student projects.
That work fell outside her job description, was treated as post-graduate work paid at €35 an hour, and was never paid to her. She kept being told that her contract would be revised. She resigned in May 2019, on the last day of her probation, and was then out of work for about two and a half years.
The Tribunal rejected her discrimination claim under article 26, because hers was the only post of its kind and there was no comparator, but found constructive dismissal and awarded €20,000.
What the court held
The College’s first ground was that the Tribunal ignored a necessary element of constructive dismissal: resignation under protest. Her resignation letter thanked the College for the opportunity and made no complaint. E.B. answered that the appeal raised no point of law.
The Court sets out the test from an earlier judgment of the same court, differently presided, of 4 December 2025. Where the law gives an appeal simply on a point of law, as it does for Industrial Tribunal decisions, it is enough that the point is involved or implicit in the decision, and an appeal is on a point of law when it attacks a part of the decision by which the law was violated.
On the substance, the Court notes that Maltese law does not define constructive dismissal and that the concept has been built by case law, drawing mostly on the English courts. The Tribunal found it because the College breached the contract by assigning work she was not engaged to do, did not pay for that work, and was reluctant to improve her conditions.
The missing protest does not change this: “b’daqshekk ma jfissirx li hija telqet mix-xogħol b’kapriċċ” (that does not mean she left her work on a whim). She did not leave for a better offer, she stayed out of work for a long time, and she resigned after seeing that her requests “qed jaqgħu fuq widnejn torox” (were falling on deaf ears).
The second ground was that compensation should have been limited under article 36(11) to half the wages due for the rest of the term, which the College put at €8,205.60. The Court rejects it: “tali ċirkostanzi ma jinkwadrawx f’dak li jipprovdi l-artikolu 36(11) tal-Kap. 452, għaliex ma kienx hemm tkeċċija tal-impjegata b’mod dirett mill-prinċipal” (those circumstances do not fall within article 36(11) of Cap. 452, because the employee was not dismissed directly by the employer).
The Tribunal was entitled to weigh her professional standing, the long period without work, and the lectures and supervisions that were never paid. The College bears the costs of both instances.
Why it matters
An employer defending a constructive dismissal claim cannot rest on a courteous resignation letter; the Tribunal and the Court look at why the employee left. A fixed-term employee who is pushed out is not held to the article 36(11) formula, so the award is assessed on the facts and can exceed half the remaining wages. Assigning unpaid work outside the job description, and letting a promised contract revision drift, is the kind of conduct that founds the claim.
Where it sits
Early termination of a fixed-term contract by the employer is governed by article 36(11), which sets a fixed statutory sum. Constructive dismissal sits outside that rule, because the employee ends the contract by reason of the employer’s conduct. The Tribunal drew on section 95(1)(c) of the English Employment Rights Act 1996 and on Western Excavating Ltd v Sharp (1978), per Lord Denning: a significant breach going to the root of the contract entitles the employee to treat himself as discharged.
It required three elements: a clear breach, express or implied; a breach serious enough that the employee resigned because of it; and a resignation not long after the conduct. It also cited a judgment of the Court of Appeal (Inferior Jurisdiction) of 2 July 2003 on the risk that delay or silence reads as acceptance of changed terms.
On discrimination the Tribunal applied the like-with-like comparison under article 26, citing an Industrial Tribunal decision of 2 October 2020 and Case C-309/97 of the Court of Justice. On the scope of appeal, the Court’s earlier decision of 4 December 2025 relied on judgments of the Court of Appeal of 6 December 1943 and 7 May 1956.
Source
Court of Appeal (Inferior Jurisdiction), 68/2025, 10 July 2026.