Employment Relations: Discrimination under UAE Labour Law
In 2021, the United Arab Emirates (UAE) underwent a comprehensive update of its Federal Labor Law, a legal framework that had been operational since 1980. This revision, often referred to as the ‘new labor law,’ not only repealed its predecessor but also introduced novel elements and legal obligations. One significant augmentation was the explicit inclusion and reinforcement of anti-discrimination provisions within labor law.
Evolution from 2015 to 2021:
- In 2015, the UAE already had anti-discrimination measures in place through law (2) 2015, primarily under the criminal code.
- While this law addressed discrimination, particularly Art 17 establishing vicarious liability and Art 9 applying to public employees during their duties, it lacked a direct obligation for employers to combat discrimination within the workplace.
- Resolution avenues outside the criminal process were limited under the 2015 law.
Introduction of Law (33) 2021:
- The year 2021 marked a pivotal shift with the introduction of the revised UAE Labor Law, Law (33) 2021.
- This updated legislation not only solidified discrimination within the labor law but also extended the reach of the 2015 law, placing explicit legal obligations on companies to actively address and prevent discrimination in the workplace.
Provisions of the 2021 Law:
The law takes a comprehensive approach to discrimination, prohibiting any form of discrimination based on race, color, sex, religion, national or social origin, or disability. It specifically aims to prevent actions that nullify or impair equality of opportunity or prejudice equal treatment in employment (Art 4.1).
Obligations Imposed on Employers:
- Equality in Promotion:
- Employers are prohibited from impairing equality of opportunity in promotions.
- Equal Treatment in the Workplace:
- The law ensures that employees receive equal treatment within the workplace.
- While the law does not mandate identical benefits for all, it emphasizes that employees of the same level should be offered the same benefits and opportunities.
- Equal Pay Provision (Art 4.4):
- The law includes an equal pay provision in the context of gender, ensuring that women performing the same work or work of equal value cannot be paid less than men.
- However, this provision is limited in scope and doesn’t cover all-encompassing discrimination criteria outlined in Art 4.1.
Burden of Proof and Mitigation Measures:
- The burden of proof in discrimination claims lies with the employee, requiring them to demonstrate denial of opportunity based on the listed criteria.
- Employers are not obligated to prove non-discrimination or the existence of preventive mechanisms. However, having such mechanisms in place is crucial for mitigating potential claims.
Direct vs. Indirect Discrimination:
- Art 4 focuses on direct discrimination, where someone is denied opportunities based on defined characteristics.
- While indirect discrimination is not expressly excluded, it is not explicitly provided for. Complainants must establish denial of opportunity or unequal treatment, making proving indirect discrimination challenging.
At the time of writing this article the 2021 law is still to be tested fully, especially the new elements. This is due to the fact that whilst the law was enacted in 2021, it did not take full effect until 2022 and, whilst there have been a number of discrimination claims issued in the Labour Courts, the overall position is that the discrimination aspect is still untested, to an extent.
It is therefore important that companies take a pragmatic and pro-active approach to the 2021 law. HR policies, especially regarding disciplinary matters, grievance handling, recruitment, promotion and harassment should be carefully reviewed and updated.
The main tips are as follows:
- Ensure you have updated employment policies.
- Ensure that your HR policies, especially concerning disciplinary, are up to date and in line with the provisions of Law 33 2021;
- Ensure that recruitment and promotion policies and practices comply with Art 4.4;
- The law currently applies to ‘direct’ discrimination and is silent on ‘indirect’ discrimination, but consideration should be given to both aspects when drafting HR policies and procedures.
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