x Abu Dhabi, UAEThursday 27 July 2017

Wanted: lawful use of UAE labour law on 'discrimination'

What exactly does UAE labour law say about discrimination on the basis of race or ethnic background?

Recent news reports in The National about discrimination in access to work have focused attention on the UAE's laws on job recruitment.

A news story (Job advert discrimination not illegal in UAE, January 5) and an editorial (Bias in advertising is bad for business, January 6) both discussed the placement of overtly discriminatory adverts on websites such as Dubizzle.

One receptionist position was reserved, the help wanted advert said, for an "attractive Russian". Other adverts asked that people "only from Kerala" should apply.

Employers or agents justified such adverts, saying people are entitled to recruit by gender or nationality, according to the role. A former labour minister, Dr Ali Al Kaabi, was quoted as saying that there are no rules against such adverts.

Still, Dubizzle has now promised to take down any adverts calling for specific nationalities. But some newspapers still carry adverts with such restrictions.

Such adverts would be absolutely unlawful in many jurisdictions outside of the UAE, and a candidate denied the opportunity to be considered for a job on that basis could personally sue for damages including lost earnings, and in some cases for injury to feelings or punitive damages as well.

Laws in some countries recognise two types of discrimination in access to work. "Direct" discrimination - asking for a "Keralan", for example - is seen as unfairly excluding all other job-seekers. "Indirect" discrimination is more subtle. Requiring an individual to have a degree from a university in Europe or the US, for example, would have a disproportionate effect against anyone who comes from anywhere else. Similarly, there might be indirect discrimination in requiring a candidate to speak and write a given language.

Of course there are legitimate requirements - known as "genuine occupational qualifications" - that are on the face of them indirectly discriminatory. But in indirect discrimination cases, courts generally read that defence narrowly, testing the requirements against the job description.

A woman may be preferred, for example, for a job as caregiver for a woman. And a language requirement may well be justified because of the needs of customers.

But if an employer imposes a requirement to both speak and write French, for example, and the job really requires only speaking that language, then the requirement for written French would be considered to go overboard.

The UAE labour law of 1980 is silent on discrimination apart from two or three key regulations. Article 9 enshrines the inherent right of Emiratis to work - a clear statement of positive discrimination. What is not widely understood is that the labour law also creates a preference for Arab nationals where an Emirati is not available. Article 10 states that "where national employees are not available, preference in employment shall be given to Arab workers belonging to another country by nationality" and only then, "workers of other nationalities".

The strict reading of this rule dictates that an advert requiring a Russian, for example, would violate the labour law unless the needs of the job require a Russian. In case of a breach of the labour law the ministry has a wide range of sanctions including fines.

Hiring of Emiratis is supported by the percentage quotas applied to private commercial businesses. And further support for Arab preferment can be found in regulation 1187, of 2010.

This classification rule creates five tiers for businesses, and varies the fee for labour cards depending on the nature of the workforce, in a way designed to encourage the employment of Emiratis and then of other Arabs. In category 2A, for example, a labour card costs Dh600, while in the lowest tier, category 3, the cost is Dh5,000. There are also other disincentives, such as fines of Dh20,000 for each action not compliant with the Emiratisation rules.

This system operates above the commercial level, where there are clearly payroll issues such as consideration of how much individuals of different nationalities must be offered or will accept to work.

Overall, it is difficult to see how an individual denied a job by virtue of his nationality could bring an action seeking damages for any failure to employ him. There is an option, however, to bring an action for arbitrary dismissal if an Arab is released and replaced by a western person, for example. Damages would be limited to three month's pay.

In theory, a qualified and available Arab national should "trump" any non-Arab candidates in any selection for redundancy - or promotion.

A further limitation on employers' preferences will always be the availability of a work permit and residency. And there is absolute official discretion in applying security criteria to the immigration system; any other rules are always subject to this.

There are no overt preferences for men or women in UAE labour law. But there is a simple rule, Article 32, that provides for equal wages where men and women perform the "same work".

This section of the law should in theory be capable of enforcement by an individual. So if a female manager were paid less or offered less than all of her male colleagues she would have a valid complaint if she could demonstrate that she was doing the "same work".

On the face of it, then, we can say that federal law has rules, more developed than is readily understood, to combat discrimination and in particular, to support Arab job candidates, and also to support gender equality in pay.

 

Neil Crossley is head of employment, pensions and benefits at DLA Piper Middle East, and is based in Dubai