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Abu Dhabi, UAEThursday 18 October 2018

'Can I skip my gardening leave to start a new job immediately?'

The reader does not want to sit at home during his notice period

Keren Bobker says employers place staff on ‘gardening leave’ when they want them to see out their notice period without actually working. Jaime Puebla / The National
Keren Bobker says employers place staff on ‘gardening leave’ when they want them to see out their notice period without actually working. Jaime Puebla / The National

I have given in my notice but as I am in a sales role, my employer does not want me to work my notice period. Usually I’d be happy to sit at home and be paid but I have a new job to go to and would like to start as soon as I can. I think my current boss would not mind me finishing soon, but can we do this by law? GS, Abu Dhabi

While it is standard to expect an employee to work during their notice period, there are situations when an employer wants to stop someone dealing with customers immediately. An employer can put someone on ‘gardening leave’, where they see out their notice period without actually working. However, provided both parties are in full agreement employment can be formally terminated sooner than the end of the notice period. Provided the current visa is cancelled, and monies owed are paid in full, there is no reason why GS cannot take up a new role very quickly.

I have recently received a job offer from a university in Dubai. They have already issued the job offer letter, however, they advised me to start work soon after I arrive in the country on a visit visa. They say they will start processing the employment visa, once I start work. Will it be legally safe on my part to accept their proposal to work on my visit/tourist visa and to wait to get my employment visa processed? PB, India

It is not legal for anyone to undertake employment on a visit or tourist visa but the situation is slightly different if an employer has made a formal application for a residency visa. A company cannot properly start the process until a new employee is in the country, so it is not unusual for someone to be working while the application is in process. I must stress that an application should have started by the time the employee starts working so that the completion is a formality. There is an informal grace period for the paperwork to be finalised but an employer must have all the documents in hand. This does not mean the employer can delay before applying as records can easily be checked and the process should really only take a couple of weeks in most cases.

Under no circumstances is an employer permitted to employ someone without a visa and then apply at a later date such as after a probationary period as a way of potentially saving money. If in doubt, an employee should ask for evidence of the application having been submitted.

To quote from the UAE Government's official website: "Working without first obtaining the proper visa status is illegal and could lead to imprisonment, fines and/or deportation. The penalties apply to both: the employer and the employee."

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I work as mechanical engineer for a mainland company. I joined the company on an unlimited contract in May 2018 but I am not happy with my salary, which is just Dh3,000 a month and I have found another job with a better salary package so I want to make a change. My questions are:

1. Will a ban be imposed if I give the 30-day notice period to the company when I submit my resignation?

2. Will I have to compensate my company for visa expenses? FA, Sharjah

FA had been working for this company for just four months at time of writing so if he gives notice to leave he will have worked for fewer than six months at the time of departure. This is relevant as there are cases where someone in this position could receive a ban for leaving at this stage. It all depends on the skill level of his visa. Workers in skill categories one to three will not face a six-month employment ban should they wish to move to a new employer after completing their notice period. This covers a wide range of jobs for people working in professional roles with degrees or professional diplomas as well as most office-based staff. Categories four and five cover individuals in primarily unskilled roles. I expect a mechanical engineer to have some professional qualifications, so they should fall in to one of the higher categories. This means that FA will not receive a ban for leaving this employment if proper notice is given.

Furthermore, FA is not liable to compensate his employer for any visa costs when he leaves service as it is the employer’s responsibility to pay for all employment-related costs such as visa fees. Employers are not permitted to pass on the costs to employees and this is covered in Ministerial Order 52 of 1989, Article 6 which makes it clear that all expenses incurred in taking on of an employee must be borne by the employer and cannot be passed on.

Keren Bobker is an independent financial adviser and senior partner with Holborn Assets in Dubai, with over 25 years’ experience. Contact her at keren@holbornassets.com. Follow her on Twitter at @FinancialUAE

The advice provided in our columns does not constitute legal advice and is provided for information only