x Abu Dhabi, UAE Thursday 20 July 2017

Employers holding passports is legal grey area

Loopholes in UAE labour law allow employers to hold employees' passports without punishment.

ABU DHABI // An official complaint filed to the Ministry of Labour by four hotel employees is likely to shine renewed light on the legality of passport retention - a common practice by employers in hospitality and other businesses.

According to a decree by the Ministry of Interior in 2002: "It will be considered as an illegal action to retain the passport except by governmental parties … in case of retaining passports, there will be a suitable punishment by the law."

The UAE is also a signatory to the International Labour Organization's Convention on the Abolition of Forced Labour. The ILO considers withholding passports to be a violation of that convention.

However, no UAE government agency enforces either the convention or the ministry's decree, and legal experts say there is no law against an employer retaining an employee's passport.

"There isn't anything expressly saying anything about it," said Sara Khoja, a senior associate who specialises in employment law at Clyde & Co in Dubai. "It's not in any code. It's not in the labour code or in civil law."

The Ministry of Labour says it will investigate if employees file a complaint - which four staff at the Millennium Hotel in Abu Dhabi did this week, alleging offences including the retention of their passports and health insurance cards.

"The employees don't know what the hotel is allowed to do," said one Sri Lankan worker. "We are told it's illegal but they say, 'No, every hotel does this'. It's not right what they are doing."

In addition, before returning an employee's passport for travel or administrative purposes, the Millennium demands a financial guarantee from a colleague in case the employee absconds. Lawyers say there is no doubt that this practice is illegal.

"It happens all the time," said one Filipino employee, who intends to resign soon. "They want to control the use of our documents. Why do I need a guarantor for my own passport?"

Abdul Maksoud, the human resources manager at the Millennium, said passport retention was company policy and insisted the hotel was following local laws.

Mr Maksoud said the hotel would continue to hold passports until told otherwise. "We are still under investigation because we have not received clear instructions on this," he said.

But Nadia Mounib, the marketing and communications manager for the Middle East and Africa region of Millennium and Copthorne Hotels in Abu Dhabi, said passport retention was not corporate policy - although she admitted the practice was common.

"It's technically illegal, but it takes place across the region," Ms Mounib said. "The only reason a lot of hotels, not only in our company, keep passports is for security purposes."

She said the hotel held important documents to keep them safe because many workers lived in shared accommodation. "It is the norm for any hotel to hold passports with employee consent," Ms Mounib said.

Employees at the Millennium said they had not been given a choice. "People are scared if they say anything about their passports that they won't be allowed to work in the UAE any more," said a Filipina worker.

Alex McGeoch, a senior legal consultant and head of employment at the law firm Hadef & Partners in Dubai, said: "It is both your right and obligation to keep your passport in your possession" because the document is the property of the issuing government.

"If an employee asks to keep his passport in his own possession, at that point it would be wrongful for the employer to deny them."

The employees who filed the complaint with the Ministry of Labour said investigators had not yet ruled on it. A hearing is scheduled for November 3.

Change will happen only when the Government takes action, said Jaana Quaintance, the senior project manager for the Middle East and North Africa office of Impactt, a labour standards consultancy.

"The 2002 decree implies that this is a law but the real problem is that it's not enforced by the Ministry of Labour," Ms Quaintance said.

The Ministry of Labour and the Ministry of Interior declined to comment.