In our continuing focus on employment law, Mandeep Kalsi considers some key legal developments and important issues facing employers and employees in the UAE against the backdrop of some memorable motion pictures involving the workplace. In Part 2 of our series, the interconnected fields of immigration and employment law, as well as issues surrounding discrimination are considered.
So sit back, whilst the scene is set....
TAGLINE: THE UAE SPONSORSHIP TRANSFER REGIME
Setting the scene: Alice in Wonderland (2010) (Director: Tim Burton) -
A computer-animated fantasy film, starring Johnny Depp and Helena Bonham Carter, and inspired by Lewis Carroll's acclaimed novel 'Alice's Adventures in Wonderland' and its sequel, 'Through the Looking-Glass'.
Whilst not a workplace film per se, for many HR professionals starting out in the UAE region, it can sometimes feel that they, just like Alice, have tumbled down a rabbit hole, when trying to navigate the maze of immigration rules, regulations, and related changes.
Freedom of movement
2011 saw a number of changes in the interconnected fields of immigration and employment law. Under the provisions of Ministerial Resolution No.1186 of 2010, the sponsorship transfer regime was substantially liberalised, thereby introducing a welcome element of flexibility into the UAE labour market.
The Resolution has now clarified that upon the cancellation of an employee's work permit, an automatic six-month post-employment work ban will no longer be imposed where: (1) employment is terminated by mutual consent (i.e. for those engaged under unlimited-term contracts, resignation with the correct notice; and for those engaged under fixed-term contracts, completing the full-term); and (2) the employee has at least two years of service. These two conditions are not mutually exclusive.
There are exceptions to both rules including situations where the employer acts in breach of its contractual or statutory obligations towards the employee or where the employee is not the "cause" of the termination. Moreover, the lack of two years' service can also be overcome if an employee shows that he or she falls into a qualifying professional category (based on academic achievement) and will be receiving from his or her new employer a minimum recommended salary.
It is also worth noting that work permits in the private sector will now have to be renewed every two years rather than every three years which will have a clear cost implication for employers.
TAGLINE: DISCRIMINATION and fostering a diverse work environment
SETTING THE SCENE: The Associate (1996) (Director: Donald Petrie) - Whoopi Goldberg plays Laurel Ayres, an investment banker climbing the corporate ladder in this late 90s comedy. On learning that she has been passed over for a promotion due to her gender, she quits her job and sets up her own company on Wall Street. But she faces an up-hill struggle as an African American women in a male-dominated world. The solution? "Robert Cutty", a fictional male 'partner' she creates at her company....with hilarious (but sobering) consequences.
Managing diversity successfully entails the creation of an environment that values, recognises and utilises the contributions of individuals with different experiences, backgrounds and perspectives. A workplace diversity and equal opportunities policy that is actively implemented and embedded in an organisation's culture and management systems helps to foster and cultivate an organisation's relationship with the community at large, enhance employee contribution and, improve the quality of its products and services, as well as its customer relations.
Legal framework
As a reminder of the importance of building and promoting equality and diversity, Article 14 of the UAE Constitution provides that "Equality, social justice, ensuring safety and security and equality of opportunity for all citizens shall be the pillars of society". Article 25 further provides that, "All persons are equal before the law, without distinction between citizens of the union, in regard to race, nationality, religious belief or social status".
For those operating under the DIFC framework, protected status is awarded to employees, prohibiting discrimination on the basis of an employee's membership of a protected class, including on grounds of gender or race.
To succeed in a discrimination claim, the claimant must show that he or she has been subjected to differential treatment based upon a protected characteristic (e.g. either his or her gender or race) and that such treatment has had the effect of either imposing upon him or her burdens, obligations or disadvantages not imposed upon other persons or, (ii) limited access to opportunities, benefits and advantages available to others. Its scope is extensive, covering all aspects of employment including recruitment, promotion and dismissal.
The DIFC Authority's "Consultation Paper No.4 - Amendments to the Employment Law, DIFC Law No.4 of 2005," proposes that the current definition of discrimination be expanded to encompass both direct and indirect discrimination and a specific offence of harassment.
Although the UAE Labour Law does not contain any express or specific anti-discrimination provisions (on the basis of gender or race or otherwise), a termination which could be shown to be based on discriminatory reasons would be viewed as an arbitrary dismissal, giving rise to a claim for compensation. In addition, whilst the UAE may not have in place laws specifically prohibiting discriminatory harassment in a workplace setting, sexual harassment is a criminal offence.
The extra-territorial reach of EU-derived discrimination law claims is an issue that EU companies employing or seconding personnel outside of Europe must grapple with, as discriminatory conduct overseas could potentially be caught. Similar considerations apply with respect to the application of US discrimination laws.
Employers in the UAE must also be mindful of the concept of positive discrimination, with the existence of a general duty on the part of employers to employ UAE nationals, and then nationals of other Arab countries, in preference to expatriates.
The categorisation of employers pursuant to Ministerial Resolution No 1187 of 2010 underscores the importance of encouraging workplace diversity. Employers in the UAE are categorised into three company grades - Categories 1, 2, 3 - Category 2 being subdivided in Categories 2A, 2B and 2C. Category 1 classification is reserved for those companies which maintain the highest standards of compliance with employment law obligations and strictly observe government policies with regard to emiritisation and cultural diversity.
Employers who violate employment and immigration rules face higher bank guarantees, downgrading and the imposition of prescribed "black points". Although such positive discrimination is prohibited in many jurisdictions, in the UAE, the government remains ambitious to see a greater percentage of Emiratis working in the private sector and a more skilled culturally diverse workforce overall.
Employers should accordingly have due regard to the need to eliminate unlawful discrimination and harassment, and promote equal opportunity. Consideration should therefore be given to both their policies and working practices in relation to all aspects of the employment relationship. Whilst there are certain issues unique to operating in the UAE, these should not hinder the promotion and overall dividends of workplace equality and diversity, a cornerstone of every successful organisation.
And that's all folks....
Although employment law does not quite have the glitz or appeal of the movies, managing employment relationships effectively is key to ensuring that not only are statutory obligations are understood and met by employers and employees alike, but that an environment of transparency, fairness and diversity is cultivated and fostered.
"The views expressed in this article do not necessarily constitute the views of Zawya."
© Hadef & Partners 2012
