Tag: Labour and Employment

UAE: New End of Service Benefits Scheme for Employees in the Private Sector

The UAE Cabinet recently approved a scheme for the establishment of savings and investment funds for employees primarily in the private sector (including free zones). This scheme is an alternative to the current system of payment of end-of-service benefits (gratuity) to an employee at the end of his employment.

 

Participation in the scheme will be optional for employers. Under this scheme, the participating employer will be required to make a monthly contribution to the selected fund.

 

The funds will be supervised by the UAE Securities and Commodities Authority in coordination with the Ministry of Human Resources and Emiratization.

 

The scheme is likely to have three investments options: (i) risk-free investment option (which will maintain the capital), (ii) low, medium or high risk-based investment options; and (iii) sharia-complaint investment option.

 

An employee will be entitled to receive his savings (contributions made by the employer) and returns on investments (as per the investment option selected) at the end of his employment. If employment has been terminated, it is likely that an employee will have the option to continue with the fund (without additional contribution from the previous employer) by not withdrawing his savings and returns.

 

Participating employers will not be required to pay end-of-service gratuity to the employees at the end of their employment. However, other benefits such as return ticket/air fare, payment of unused annual leaves and other contractual benefits will still be required to be paid by the employers at the end of an employee’s employment.

 

Additionally, employers are currently not required to make a provision in their accounting books for their end-of-service benefits liability. End-of-service benefits are only due and payable to an employee at the end of his employment. In case an employer is in financial difficulties, such an employer is often unable to make payment of the end of service benefits to its employees. However, under the new scheme, employers will be required to make monthly contribution. Even if an employer is facing financial difficulties, if the said employer has already made monthly contributions, at least certain part of the end-of-service benefits of its employees will be protected.

 

There is currently no similar scheme in the UAE except for the pension scheme that is only applicable to GCC national employees and the DIFC Employee Workplace Savings Scheme (DEWS).

 

Detailed legislation regarding the scheme and its implementation is expected in due course. ■

Evolving Landscape for Whistleblower Protection in the UAE

Whistleblowing or simply put, the act of drawing attention to or complaining about perceived wrongdoing, misconduct, unethical activity within one’s organisation has been a topic of great relevance in the last few years. While there is no federal law relating to whistleblowing in the UAE, there have been significant legal developments in this area.

 

The Dubai Law No. 4/2016 on Dubai Economic Security Centre which applies to all entities licensed in Dubai and the freezones established the Dubai Economic Security Centre (DESC). The DESC is tasked to fight corruption, crimes of fraud, bribery, embezzlement, damage to public property, forgery, counterfeiting, money laundering, financing terrorism and monitor financial violations and markets. This law defines a whistleblower as a person who notifies or cooperates with the DESC about any matter that may prejudice the economic security of Dubai. DESC is required to ensure confidentiality and provide the necessary protection to the whistleblower from retaliation or discrimination. However, this law has not seen much practical implementation and is yet to be tested.

 

In this inBrief, we look at whistleblowing policies that have been adopted by three freezones in the UAE: the Dubai Multi Commodity Centre, the Dubai International Financial Centre, and the Abu Dhabi Global Markets.

 

Dubai Multi Commodity Centre (DMCC)

 

Subsequent to the establishment of the DESC, the DMCC, one of Dubai’s most prominent freezones, also issued a whistleblowing guidance note for its members on 10 November 2019. The DMCC has defined whistleblowing very widely to include any concern regarding actual or potential illegal activity, or unacceptable or undesirable behavior of public concern which may have reputational impact including financial malpractice, fraud, failure to comply with a legal obligation, human rights abuses, dangers to health and safety or the environment, etc. The guidance extends to (i) employees and former employees; (ii) consultants; (iii) accredited members of DMCC clubs; (iv) owners, residents and visitors to DMCC free zone; and (v) owners’ associations and management companies.

 

Any such complaint must be made to the dedicated email ID of DMCC Authority and may be made anonymously. It also contains principles relating to confidentiality and protection if such complaint is made in good faith and with reasonable suspicion.

 

Dubai International Financial Centre

 

The Dubai Financial Services Authority (DFSA) published its own Whistleblowing Regime in April 2022 that applies to a registered auditor, a DFSA Authorised Person (an entity licensed to undertake financial services in the DIFC), or a Designated Non-Financial Business or Profession (which includes real estate developers, dealers in precious metals, law firms, accounting firms, company service providers or a singly family office). All these entities need to put in place appropriate and effective policies and procedures to facilitate the reporting and assessment of regulatory concerns. The whistleblowers may make a complaint to its organisation or directly to the DFSA. Legal protections are available to the whistleblowers only when the disclosure relates to a reasonable suspicion that the organisation has contravened any law or is engaged in money laundering, fraud or any other financial crime provided that the disclosure is made in good faith. These provisions have been given legal effect by making adequate amendments to the DIFC Regulatory Law 2004.

 

The Abu Dhabi Global Markets (ADGM)

 

The ADGM, the other financial freezone in the UAE aside from the DIFC, is the latest entrant to this regulatory space. The ADGM issued Guiding Principles on Whistleblowing in December 2022 and, unlike the DIFC, the ADGM has issued a non-binding Guidance which is proposed to complement its regulatory framework and act as guidance for all ADGM entities when designing and implementing a whistleblowing infrastructure. It is worth noting that the ADGM Authority and its financial regulator, the Financial Services Regulatory Authority, also provide infrastructure (on their websites) to make such complaints directly to the authorities. However, it is advised (but not mandated) that the complainant tries contacting the relevant entity directly in the first instance as this can often lead to a swift and efficient resolution of the issue.

 

The ADGM Guidance is very comprehensive and sets out the following principles:

 

1. Guiding Definition of Whistleblowing: ADGM encourages entities to use a broad definition of whistleblowing which could include references to fraud, money laundering, corruption, breaches of legal or regulatory requirements, unethical conduct and/or acts to cover up wrongdoing. It should be clear that whistleblowing is distinct from an employee grievance or a customer complaint.

 

2. Non-Retaliation: A whistleblowing framework should at all times adequately protect whistleblowers from any and all forms of retaliation or disadvantage arising from their whistleblowing. The policy of non-retaliation should be credible and convincing.

 

3. Confidentiality and Due Process: ADGM entities should have controls in place to prevent unauthorised access to whistleblowing reports or any information that might inadvertently or inappropriately reveal the identity of a whistleblower or the subject of the complaint. Disclosure of information to appropriate external whistleblowing channels – such as a regulator or independent investigator – should be expressly exempt from confidentiality requirements.

 

4. Reporting in Good Faith: Protection to whistleblowers is only afforded if the report is made in good faith, i.e. based on an honestly held belief that the information offered at the time of disclosure is true. While a genuine misunderstanding should still be protected, deliberate false disclosures or those made exclusively in self-interest do not meet this criterion.

 

5. Components of a Whistleblowing Framework: No one-size-fits-all approach. Each entity has the flexibility to decide its own policy and reporting requirements depending on its size, business, risk profile and complexity. Independent assessment and investigation should be supported with appropriate training and awareness sessions for staff and managers.

 

6. Culture: The Guidance insists on a ‘tone from the top’ approach and emphasises that a robust whistleblowing approach is ineffective if not supported in practice. It highlights issues such as under resourcing, low responsiveness, inadequate investigation and poor confidentiality as roadblocks and insists that the entity culture should be such that whistleblowers feel safe to raise issues, and that there are credible channels they are aware of and can use.

 

The ADGM Guidance adds to the regulatory regime applicable across UAE and provides entities with several key issues that they must consider while drafting their internal whistleblowing policies. Similar to the DIFC, it can be expected that the existence of an effective whistleblowing policy, and measures taken by an entity to enforce it, may be considered as a relevant factor while determining any penalties or sanctions imposed by the ADGM against such an entity. This would imply that an ADGM entity should take adequate measures to formulate and maintain its internal policies in line with the Guidance. ■

Hiring an employee in the UAE – key considerations to be mindful of

The United Arab Emirates (UAE), a sought-after destination by foreign businesses for establishing their regional offices, consists of multiple jurisdictions for incorporation/establishment of entities. Each Emirate of the UAE has its own licensing authority and, additionally, there are more than 40 free zones in the UAE. Each Emirate and each free zone can be regarded as a separate jurisdiction for the incorporation and establishment of entities.

 

Federal Decree-Law 33 of 2021 on Regulation of Labour Relations (as amended) (the new Labour Law), which repealed and replaced Federal Law 8 of 1980 concerning the Regulation of Labour Relations (as amended) (the old Labour Law), applies to all jurisdictions within the UAE except for the Dubai International Financial Centre (DIFC) free zone and Abu Dhabi Global Markets (ADGM) free zone, both of which have their own employment laws.

 

In this inBrief, we discuss certain fundamental points which are commonly raised by employers headquartered outside of the UAE and with little familiarity with the new Labour Law. Although commonalities exist in all jurisdictions, points covered in this inBrief apply to entities established in the UAE excluding the DIFC and the ADGM.

 

UAE Residency Visa and Work Permits

The majority of the workforce in the UAE is comprised of foreign nationals (excluding Gulf Cooperative Council (GCC) countries nationals) who are sponsored by their employers. To sponsor an employee, a UAE employer will arrange residency visas and work permits for such foreign national employees. Subject to complying with certain procedural requirements and passing a routine health and security check, UAE residency visas and work permits are readily issued by the appropriate UAE authorities.

 

Use of Standard Form of Employment Contract

Most jurisdictions within the UAE require the use of standard form of employment contracts. For entities operating in mainland UAE (outside of the free zone areas), the UAE Ministry of Human Resources & Emiratisation (MOHRE) has published a standard form employment contract. Similarly, Jebel Ali Free Zone Authority (JAFZA) (the authority which regulates Jebel Ali Free Zone) and a number of other free zones have issued standard forms of employment contracts.

 

The standard form employment contracts are invariably basic documents covering the minimum provisions required for an employment contract. Therefore, it is common for an employer and an employee (such as senior employees) to enter into a more sophisticated contract covering additional points not covered in the standard form contract or providing greater detail on standard provisions than what is typically included in the standard form contract.

 

Term of Employment Contracts

Under the old Labour Law, it was permissible to enter into either limited term employment contracts or unlimited term employment contracts. However, under the new Labour Law, the concept of unlimited term employment contracts has been removed. There is no limit on the minimum or maximum number of years of a term. It is permissible to renew an employment contract for similar or shorter periods as agreed between the parties.

 

Probation Period

The probation period of an employee can be a maximum of six months. Under the old Labour Law, either party could terminate an employment contract during probation period without notice. Under the new Labour Law, however, notice of termination of employment is required to be served and notice period will vary depending on the circumstances.

 

Salary and End of Service Gratuity

Salary is generally divided in two components, basic salary and allowances. Allowances can be further divided into different types of allowances and can be any amount the employer chooses and are not required to be the actual amounts incurred by the employee. For example, the monthly housing allowance is not required to be equal to the actual monthly rent of an employee.

 

Employees are entitled to an end-of-service gratuity (a benefit which an employer is required to pay at the end of an employee’s service) which is calculated on the basis of basic salary. The higher the basic salary, the higher will be the end-of-service gratuity. It is common to split the monthly basic salary and allowances to, say, 40-60, 50-50 or 60-40 ratios. An employer has discretion to keep a further lower basic salary and offer higher allowances.

 

Once agreed in an employment contract, the employer will not be able to unilaterally reduce or adjust the basic salary and allowances to the detriment of an employee.

 

Pension contributions are mandatory for employees from GCC countries. End of service gratuity is not required to be paid to employees from GCC countries.

 

Termination at Will

The Labour Law does not provide for termination of employment at will. The Labour Law provides for grounds on which an employment contract may be terminated by either party. In case of wrongful termination of an employment contract by an employer, the UAE courts may award compensation to an employee which is capped at a maximum of three months of current salary[1].

 

Governing Law and Dispute Resolution

All employment contracts must be governed by the laws of the UAE and be subject to UAE local courts. In case of a dispute, irrespective of the provisions of an employment contract, UAE courts will have jurisdiction and will apply the laws of the UAE. An employment dispute cannot be subject to resolution through arbitration.

 

Reliefs of Injunction and Specific Performance

The UAE courts generally do not grant remedies of injunction and specific performance. In case an employee, in breach of his non-compete obligations, joins a competitor of his previous employer, the previous employer will need to file a case before the UAE courts and prove and claim damages (which is often difficult) from the employee.

 

A detailed inBrief on the new Labour Law can be accessed here. ■

 

***

 

[1] Other provisions may apply for termination of employment of UAE nationals.

 

Video inBrief: Unemployment Insurance Scheme in the UAE

In this video inBrief, Saurbh Kothari, partner, breaks down the mandatory unemployment insurance scheme in the United Arab Emirates.


Disclaimer: Afridi & Angell’s video inBriefs provide a brief overview and commentary on recent legal announcements and developments. Comments and opinions contained in the video and description are general information only. They should not be regarded or relied upon as legal advice.

UAE Unemployment Insurance Law

In September 2022, the UAE introduced an insurance scheme pursuant to Federal Decree No. 13 of 2022 concerning unemployment insurance. This law was followed by Cabinet Decision No. 97 of 2022 concerning the mechanisms and controls for implementing the unemployment insurance scheme, and Ministerial Resolution No. 604 of 2022 concerning the unemployment insurance scheme (together with the Federal Decree, the Unemployment Insurance Law).

 

Applicability of the Unemployment Insurance Law

 

The Unemployment Insurance Law came into effect on 1 January 2023. It applies to all employees in the private sector and the UAE Federal government sector. However, certain categories are exempt from the applicability of the Unemployment Insurance Law, such as: investors (i.e., individuals who own their companies and work at such companies), domestic workers, workers under temporary contracts, etc.

 

As of now, the Unemployment Insurance Law is not applicable to employees of free zone companies.

 

Is it mandatory to subscribe to the insurance scheme?

 

It is mandatory for an employee (unless the employee is under one of the exempt categories) to subscribe to the unemployment insurance scheme.

 

What are employers’ obligations under the Unemployment Insurance Law?

 

There is no obligation on an employer to register its employees. However, employers are expected to encourage and direct their employees to subscribe to the scheme.

 

How much an employee is required to contribute?

 

Insurance premiums are calculated based on the basic salary of employees. Contribution of not more than UAE Dirhams 5 per month for employees earning a monthly basic salary not exceeding UAE Dirhams 16,000 (the Category 1) and contribution of not more than UAE Dirhams 10 per month for employees earning a monthly basic salary exceeding UAE Dirhams 16,000 (the Category 2), will be required to be paid.

 

Insurance payout

 

The insurance payout will be on monthly basis and will be equal to 60 per cent of an employee’s monthly basic salary subject to a maximum of UAE Dirhams 10,000 per month for the Category 1 employee and UAE Dirhams 20,000 for the Category 2 employee.

 

The insurance payout will be for a maximum period of three months for each claim.

 

Criteria for claiming compensation

 

The following criteria are required to be met by an employee to claim compensation:

 

(i) employee must have been insured for not less than a consecutive 12-month period;

 

(ii) premiums must be paid by the employee as per the payment schedule;

 

(iii) employee should not have voluntarily resigned;

 

(iv) employee’s employment should not have been terminated for disciplinary reasons;

 

(v) employee must be in UAE at the time of making a claim;

 

(vi) insurance claim should be submitted within 30 days from the date of termination of the employment or the decision from a UAE court;

 

(vii) employee should not have an existing complaint of interruption from work; and

 

(viii) claim for compensation should not be made through deception or fraud and place of establishment should not be fictitious.

 

Penalties for non-compliance

 

An employee who fails to subscribe to the insurance scheme will be fined UAE Dirhams 400. An employee who fails to make payment of the insurance premium for more than three months from the due date will be fined UAE Dirhams 200.

 

If an employee fails to pay the fine for three months from the due date, then the fine will be deducted from the employee’s wages through the Wage Protection System, end of service gratuity, or any alternative system.

 

Further, an employee will not be eligible for a new work permit until all due fines have been paid within the specified timelines.

 

Timelines for subscription

 

All current employees who fail to enroll themselves under the scheme by 30 June 2023 will be fined as per the aforementioned penalties. Employees who are starting employment after 1 January 2023, are required to enroll themselves within four months from the date based on the criterion mentioned in the Unemployment Insurance Law. ■

Video inBrief: New Emiratisation targets in the UAE

In this video inBrief, Abdus Samad, partner, discusses the new Emiratisation targets required by business in the UAE by January 2023.

 

 

 

Disclaimer: Afridi & Angell’s video inBriefs provide a brief overview and commentary on recent legal announcements and developments. Comments and opinions contained in the video and description are general information only. They should not be regarded or relied upon as legal advice.

Deadline for Emiratisation in private sector approaches

In the last few months, the UAE authorities have introduced a number of measures intended to increase the number of UAE nationals who are employed in the private sector. The Emirati Cadres Competitiveness Council (Nafis) program, originally established in 2016 with the aim of attracting UAE nationals to the private sector, has been reinvigorated.

 

The UAE government has also introduced the following measures aimed at employers in the private sector:

 

(a) Ministerial Resolution 279 of 2022 on Monitoring Mechanisms of Emiratisation Rates in the Private Sector (Emiratisation Resolution): Issued in June 2022, the Emiratisation Resolution requires each employer registered with the Ministry of Human Resources and Emiratisation (the MOHRE) to increase the proportion of Emiratis in the workforce by 2 per cent each year, until reaching the level of 10 per cent by 2026.

 

Requirement: The required proportion of UAE nationals in the workforce is currently one out of every 50 skilled employees. This will increase proportionately until it reaches five out of every 50 by 2026. These thresholds do not apply to banks and insurance firms, where separate Emiratisation targets of 4 percent and 5 per cent respectively are applicable.

 

Applicability: The Emiratisation Resolution does not apply to free zone businesses. For all other entities, compliance should be ensured by January 2023 to avoid sanctions.

 

Consequences of non-compliance: With effect from January2023, a penalty of AED 6,000 per month for every UAE national not employed in accordance with the Emiratisation Resolution along with suspension of issuance and renewal of work permits is prescribed. The penalty increases by AED 1,000 every year. Any drop in the Emiratisation percentage must be recouped within two months to avoid a penalty.

 

Non-payment of the penalty for two months after the due date would result in suspension of the labour file for the offending employer and for all other entities wholly owned by the same proprietors.

 

(b) Cabinet Resolution 18 of 2022 on the Classification of Private Sector Establishments (Classification Resolution): Issued in March 2022, the Classification Resolution classifies all employers into three categories as follows:

 

i. First category: An employer in compliance with the Labour Law and its implementing regulations that also fulfils any of the following criteria: (a) achieved an Emiratisation level of three times the target; (b) cooperates with the Nafis program by hiring and training at least 500 citizens each year; (c) is owned by national youth and is classified as a small or medium-sized enterprise or as innovative in character; (d) is located in the training and employment centres that support manpower planning through promotion of cultural and demographic diversity in the labour market; (e) operates within targeted economic sectors and activities as determined by the Cabinet; or (f) belongs to the Higher Corporation for Specialized Economic Zones.

 

A subsequent Resolution issued by the MOHRE clarifies that an employer, in order to qualify under item (a), above, must also have at least 30 UAE nationals in its workforce.

 

ii. Second category: An employer in compliance with the Labour Law and its implementing regulations that also complies with manpower planning policy through promotion of cultural and demographic diversity in the labour market. However, an employer having 50 employees or more is to be placed in the second category during the transition period.

 

iii. Third category: An employer that is not compliant with the Labour Law and its implementing regulations.

The Classification Resolution provides for different levels of fees for MOHRE transactions. An employer in the first category is charged a fee of AED 150 for the issue or renewal of a labour permit. The fee increases to AED 250 to AED 1,000 for an employer in the second category and AED 2,500 for an employer in the third category. Each employer is also required to provide a bank guarantee of AED 3,000 for each employee or to provide insurance for each employee.

 

Accordingly, all employers should ensure that they achieve compliance with the new requirements by January 2023 in order to avoid penalties or downgrading of category status. They may also consider registering on the Nafis programme (voluntary scheme) which acts as a recruitment portal for UAE nationals. ■

UAE Amends the Labour Law

The promulgation of Federal-Decree Law 6 of 2020 has introduced two amendments to the Labour Law of the United Arab Emirates, Federal Law 8 of 1980, as amended. The amendments introduce equal treatment for male and female employees in respect of compensation and parental leave. The new measure was promulgated on 25 August 2020 and took effect on 25 September 2020.

 

The first amendment affects Article 32 of the Labour Law. Previously, Article 32 simply provided that a woman shall be paid the same salary as a man if she performs similar work. Now, this provision requires that a woman be paid the same as a man if she performs the same work or work of equal value. Furthermore, the Cabinet is enabled to promulgate detailed regulations on the subject of equal value, based on the recommendations and proposals of the Minister of Human Resources and Emiratisation. Such regulations may be expected to establish the parameters for calculation of equal value; they could also set out avenues of redress for aggrieved employees and provide for sanctions for violations.

 

The second amendment relates to Article 74 of the Labour Law. When originally enacted in 1980, this provision defined the UAE’s official holidays. It was repealed in 2017, and a Cabinet Resolution introduced a new and slightly revised list of official holidays. Now Article 74 has been repurposed to address the subject of parental leave, giving any employee the right to take five paid days of parental leave at any time from the birth of a new child until the child reaches six months of age. This right is given regardless of the employee’s gender. This right would therefore benefit female employees in addition to the provisions on maternity leave that appear in Article 30 of the Labour Law and which remain intact. Moreover, this right would appear to attach immediately upon commencement of employment.

 

The concept of equal value is new to the Labour Law, but it is already playing a role in other sectors of the labour market. With regard to the public sector, Federal Decree-Law 27 of 2018 provides equal wages to female employees of Federal government entities who have the same specialisations, qualifications, skills, work experiences and professional competencies as male employees. With regard to two financial free zones of the UAE, the Dubai International Financial Centre and the Abu Dhabi Global Market, it is prohibited to discriminate on the basis of gender in respect of any terms and conditions of employment. ■

 

Employment Measures for Dubai International Financial Centre (DIFC) Employers During COVID-19

Presidential Directive No. 4 of 2020 (Directive) is the most recent measure taken in the DIFC to ensure proper management in the DIFC during COVID-19.

 

The Directive, issued on 21 April 2020 with immediate effect, announced employment and workforce measures which shall stay in effect up to and including 31 July 2020 (referred to herein as COVID-19 emergency period).

 

We will discuss in this inBrief employment measures included in the Directive. In so far as may be required to facilitate the implementation of employment measures included in the Directive, the Directive will supersede other relevant provisions contained in Law No. 2 of 2019 (DIFC Employment Law).

 

Emergency Employment Measures

 

During the COVID-19 emergency period, employers may impose one or more of the following employment measures in respect of any of their employees:

 

• reduction in working hours

• vacation leave

• leave without pay

• temporary reduction in remuneration

• workplace access restriction

• remote working conditions including remote working requirements

 

To that effect, the following provisions in the DIFC Employment Law shall not apply to employees during the COVID-19 emergency period:

Article 14(3)

 

‘Any amendment to an Employment Contract must be in writing and signed by both the Employer and Employee, unless such amendment is of an administrative nature only, in which case the Employer shall be required to record such amendment in writing and to give written notice thereof to the Employee prior to the amendment taking effect.’

 

Article 29(2)

 

‘The Employer may require an Employee to take Vacation Leave on specified days in the current Vacation Leave Year by giving at least seven (7) days prior written notice to the Employee.’

 

Article 30(1)

 

‘Vacation Leave accrues during an Employee’s first year of employment on a monthly basis at the rate of one-twelfth (1/12) of the Employee’s annual entitlement to Vacation Leave.’

 

Article 4(1)(b)(i) of the DIFC Employment Law, stating the physical location of employees to whom the DIFC Employment Law applies, is deemed to be satisfied for employees who work for employers in or from the DIFC by way of remote working during the COVID-19 emergency period.

 

An employer wishing to apply any of the above measures can do so without the prior consent of the affected employee. The employer is required, however, to give five days prior notice in writing to the affected employee.

 

COVID-19 Related Sick Leave 

 

Under the Directive, sick leave taken by an employee during the COVID-19 emergency period as a consequence of having contracted COVID-19 or for being placed in quarantine shall not count towards sick leave entitlement of the employee as stated in the following provision of the DIFC Employment Law:

 

Article 34(1)

 

‘An Employee is entitled to Sick Leave of sixty (60) consecutive or intermittent Work Days in aggregate in a twelve (12) month period. Any references in Articles 35 and 36 to a twelve (12) month period shall be deemed to be the same period as referred to in this Article 34(1).’

 

Additionally, employees in this case shall be entitled to 100 percent of their daily wage for the duration of the sick leave and may not be subject to any of the above emergency employment measures if those measures were not imposed on them prior to taking a COVID-19 related sick leave.

 

Finally, the following provision of the DIFC Employment Law shall not apply in the case of a COVID-19 related sick leave:

 

Article 36(1)

 

‘Where an Employee takes more than an aggregate of sixty (60) Work Days of Sick Leave in a twelve (12) month period, the Employer may terminate the Employment Contract with immediate effect on written notice to the Employee.’

 

 

Working Conditions

 

The following provisions of the DIFC Employment Law (both inclusive) do not apply to employees that are working remotely during the COVID-19 emergency period:

 

Article 43

 

‘General duties of Employers

 

1) An Employer has a duty to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all its Employees.

 

2) An Employer shall provide and maintain a workplace that is free of discrimination and victimization and without risks to an Employee’s health and safety.

 

3) An Employer who contravenes Articles 43(1) or (2) is liable to a fine as set out in Schedule 2.’

 

Article 53

 

‘No penalties for preventing health and safety risks

 

An Employer shall not dismiss or otherwise penalise, directly or indirectly, any Employee for:

 

1) carrying out activities that may reasonably be considered to prevent or reduce risks to health and safety in the workplace where the Employee has been specifically designated to do so; or

 

a) taking reasonable steps to avert serious and imminent danger or for refusing to return to

 

b) the place of danger until the danger no longer exists.

 

2) An Employer who contravenes Article 53(1) is liable to a fine as set out in Schedule 2.’

 

Visa and Permits of Terminated Employees

 

During the emergency period, employers may defer the cancellation of residency visas of terminated employees provided that the employer continues to provide basic medical insurance and accommodation (where the terminated employee is dependent on the employer for accommodation) until the cancellation of terminated employees’ visas. No other core benefits or rights shall accrue in favour of terminated employees who remain on an employer’s sponsorship during the COVID-19 emergency period.

 

The following provision of the DIFC Employment Law shall not apply in the case of terminated employees during the COVID-19 emergency period:

 

Article 57(3)

 

‘If an Employee is sponsored for UAE residence visa purposes by their Employer, the Employer and the Employee must cooperate to ensure the cancellation of the Employee’s UAE residency visa as soon as reasonably practicable following the Termination Date and by no later than thirty (30) days following the Termination Date.’

 

DIFC Available Employee Database

 

The Government Services Office in the DIFC shall create and maintain the DIFC Available Employee Database (Database) consisting of employees that have been terminated or those that are surplus to employers’ need during the COVID-19 emergency period. This Database may be shared with any other competent authority maintaining a virtual labour market during the COVID-19 emergency period. DIFC employers wanting to employ new employees during the COVID-19 emergency period may search the Database.

 

Gratuity Payment Protection

 

The Directive ensures that end of service gratuity payments will not be adversely affected by the implementation of any of the Directive’s emergency measures. For purposes of Article 66(1) and Article 66(6) of the DIFC Employment Law, gratuity payments during the COVID-19 emergency period for all employees will be calculated by reference to an employee’s basic wage as at 29 February 2020.

 

Any shortfall of gratuity payment by employers who terminated employees subsequent to 1 March 2020 and prior to the issuance of this Directive shall be rectified by the employer topping up the shortfall. ■

 

Ministerial Resolution No. 281 of 2020 – Testing of employees

As we reported earlier in our inBrief dated 3 April 2020, Ministerial Resolution No. 281 of 2020 (the “Resolution”), promulgated by the Minister of Human Resources and Emiratisation on 29 March 2020, contains a requirement that all employers must test their employees for symptoms of COVID-19 at least twice a day, upon entering and upon leaving the workplace. The requirement is contained in Article 2(b) of the Resolution.

 

Employees are to be checked for temperature and for other symptoms of the Corona virus.

 

Our firm has made inquiries to contacts in the Ministry of Human Resources and Emiratisation (MOHRE) on the scope of this requirement. The Resolution in general discusses employers of labourers who are transported from workers’ accommodation to construction sites and back. However, the MOHRE contacts with whom we spoke uniformly advised us that the testing requirement applies generally, even to office workers.

 

It is our impression that compliance with this requirement is not widespread, and that the authorities’ enforcement efforts have been otherwise engaged so far. Moreover, with the enhanced restrictions on movement in Dubai that were introduced on 4 April 2020, the issue could well be moot for many employers. However, it is our firm’s advice that, in an abundance of caution, employers should now be testing those employees who continue to report to the workplace, and that other employers should prepare to do the same once the current restrictions on movement come to an end. ■