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Discrimination in the Workplace

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Discrimination in the Workplace

 

Date                       7 July 2019

Jurisdiction          Dubai International Financial Centre

Taxonomy           Discrimination & Employment Law

Overview

  • If an employer or employee is working within the DIFC or ADGM then the DIFC/ADGM Employment Law will apply to the employment contract. The DIFC and ADGM are federal financial freezones, which have their own set of laws and regulations based on Common Law. Employment matters at the DIFC are governed by the new DIFC Employment Law (DIFC Law No. 2 of 2019). This New law has been enacted on 30 May 2019 and will come into force as of 28 August 2019. The New law repeals DIFC Law No. 4 of 2005, which was amended by the Previous Law (Law No. 3 of 2012). At the ADGM, Employment matters are governed by the ADGM Employment Regulations 2015. In March 2019, the ADGM released a Consultation Paper for proposed amendments to the 2015 Regulations but no amendments have yet been amended.
  • Both the DIFC and the ADGM Employment Laws do cover discrimination in the workplace and both laws aim to prevent employees from being discriminated against on the grounds of sex, marital status, race, nationality, religion, mental or physical disability, age, pregnancy, and maternity.

Definition

  • Protected Class: These are the categories set out under the DIFC Employment law and ADGM Employment regulations.

Practical Guidance

The DIFC/ADGM Law

Under the DIFC Employment Law and the ADGM Employment Regulations employers must not discriminate on the basis of:

  • Sex
  • Marital Status
  • Race
  • Nationality
  • Religion
  • Mental or Physical Disability
  • Age
  • Pregnancy
  • Maternity

Protected Classes

  • Under article 59 of the DIFC Employment Law and article 55 of the ADGM Employment Law, discrimination is when:
  • an employee is treated less favourably than others in the same circumstances (Direct Discrimination); or
  • is put at a disadvantage not faced by others in respect of the application of the same provision, criteria or practice (Indirect Discrimination); or
  • subjected to unwanted treatment or conduct aimed at creating an intimidating, hostile, degrading or humiliating or offensive workplace (Harassment).
  • Under article 59 of the DIFC Employment Law and article 55 of the ADGM Employment Law, discrimination also includes failing to make reasonable changes to the workplace that would allow a disabled person to do their job.
  • Both direct and indirect discrimination are defensible on the grounds of a bona fide occupational requirement, which is defined under the DIFC Employment Law as a requirement reasonably necessary for the normal performance of a particular role or occupation.
  • Under the DIFC Employment Law, employers are permitted to positively discriminate in favour of certain disadvantaged groups including those that are disadvantaged due to mental or physical disability.
  • There are of course separate positive discrimination provisions in the DIFC Employment Law such as reduced working hours for fasting Muslims employees during Ramadan.
  • There are also protections for pregnant women in the DIFC and ADGM Employment Laws, both providing that the Employer shall not because of an employee's pregnancy or maternity leave, terminate the employment or change the position or conditions of the employee's employment without consent. In addition, the employee has the right to return to work at the end of the maternity leave to the same role and with the same seniority.
  • Under DIFC Employment Law an employer may be held vicariously liable for the actions of its employee committed during the course of employment. To avoid this, the employer must be able to show that the employee responsible for such conduct acted outside the course of his/her employment or that the employer took all reasonable steps to prevent employees from committing the act in question. Again, the employer's internal policies and handbooks should make it clear that such actions are not acceptable and that there will be consequences if any employee is found to have behaved in a manner which could contravene the law.
  • Under Article 61 of DIFC Employment Law, the court will not consider a claim for discrimination unless it is brought within six months of the date of the alleged discriminatory act or the failure by the Employer to do something. Any extension of time is subject to the discretion of the court.
  • The courts will have the power to determine the remedy provided to an employee that brings discrimination or victimization claim. Pursuant to Article 61(5), the courts can make a declaration as to the rights of the parties, award the employee compensation, make a recommendation for the employer to take steps to reduce any adverse effect on the employee or a combination of the above.
  • In standard cases, the court may provide for a compensation order which is an amount up to the employee’s annual wage. However, if the employer unreasonably fails to comply with any recommendations made by DIFC courts, then compensation would amount to twice the employee’s annual wage.

Comparison with English Law🔗

  • In the UK, the Equality Act 2010 (the Act) contains the key provisions relating to discrimination in the workplace.
  • Under the Equality Act, employers must not discriminate on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion, sex, or sexual orientation (the Protected Characteristics).
  • Discrimination under the Act can be direct, indirect, harassment, victimization or instructing, causing, inducing or helping discrimination.
  • The Act protects a wide range of individuals including employees and applicants, contract workers, the police, partners, LLP members, barristers, advocates, office holders, professional or trade qualifications, vocational training agencies, trade organizations and local authority members.
  • An employer can be held vicariously liable for any acts of discrimination committed by employees in the course of employment. This is defensible on the basis that the employer took all reasonable steps to prevent the employee from carrying out the discriminatory act.
  • Discrimination may be lawful if one of the following exceptions apply:

Occupational Requirements.

  • Positive Action.
  • Statutory Provisions.
  • National Security.
  • Providing benefits to the public.
  • A discrimination claim must be submitted to the employment tribunal within three months of the date of the act.
  • At the end of a discrimination claim, the tribunal may make a declaration of the rights of the parties, order that one party pays the other an amount of compensation or make a recommendation as to how to reduce any effect of discrimination. The amount of compensation awarded by the tribunal will depend on the financial loss suffered by the victim as a result of the discrimination.

Related Content

Legislation

DIFC

  • DIFC Law No. 2 of 2019 referring to the DIFC Employment Law

ADGM

  • ADGM Employment Regulations 2015 referring to the ADGM Employment Law
  • ADGM Consultation Paper No. 2 of 2019 – Proposed Amendments to the Employment Rules and Regulations

 

AUTHOR

 

Faridah Sarah   Partner, Fatma Al Mutawa Advocates & Legal Consultants (Dubai, UAE)