Points to note
The UAE's anti-discrimination framework
The recruitment regime in the UAE has recently come under scrutiny by the local media. As contemplated in an article posted in The National, practices that have been accepted for years as part of the employment and recruitment culture of companies in the UAE are now being called out for their discriminatory nature.
In response to a nursery which made headlines for seeking "European origin and white skin" applicants in its job advertisement, Dr Omar Al Nuaimi, Assistant Undersecretary of the UAE's Ministry of Human Resources and Emiratisation, expressed to The National that such "prejudicial discrimination has no place in the conditions of employment, nor in wider UAE society".
However, as Federal Law No. 8 of 1980 Pertaining to the Organisation of Labour Relations (the "UAE Labour Law") contains no provisions prohibiting discrimination in recruitment and in the workplace, it does not come as a shock that employers across the country are engaging in discriminatory practices.
While it is noted that in 2015, Federal Decree Law No. 2 of 2015 on Combatting Discrimination and Hatred (the "Anti-discrimination Law") was passed as legislation, it remains unclear whether enough protections have been put in place to safeguard employees against discriminatory practices.
The Anti-discrimination Law prohibits discrimination on grounds of religion, beliefs, sect, faith, creed, race, colour or ethnic origin, and a breach thereof is punishable by imprisonment for a period of up to five (5) years and/or a fine of between five hundred thousand Dirhams (AED 500,000) and one million Dirhams (AED 1,000,000). However, while the Anti-discrimination Law was drafted widely to capture discriminatory conduct against the protected categories, it is primarily aimed at preventing religious extremism and hate crimes.
In addition, there is a degree of uncertainty as to whether the Anti-discrimination Law has applicability to employees in the wider context and specifically in the private sector. Article 9 of the Anti-discrimination Law makes references solely to "public employees", indicating that this law may be limited to governmental employees only. As the Anti-discrimination Law remains untested before the courts, further clarity is required to understand whether its jurisdiction extends to the private sector and beyond.
The DIFC's anti-discrimination framework
The DIFC has implemented provisions under DIFC Law No. 4 of 2015, as amended (the "DIFC Employment Law"), which act to regulate and prohibit discriminatory practices. Article 58 of the DIFC Employment Law prescribes race, mental or physical disability, gender, religion, marital status and nationality as protected characteristics.
However, while these aforementioned categories are deemed protected against discrimination, there are currently no remedies which can be imposed against a party who is found in breach of these anti-discrimination provisions. This has been confirmed by the DIFC Courts, who have established that under the current legislative regime in the DIFC, there are no entitlements or rights to damages arising from a breach of the DIFC Employment Law.
Moreover, it should also be noted that there is no protection under the DIFC Employment Law for discrimination on grounds of age, or prolonged medical leave, whereby the employee takes more than an aggregate of sixty (60) working days in any twelve (12) month period.
The way forward
While we are not aware of any expected changes to the UAE's anti-discriminatory legislation at this point in time, the DIFC is in the process of enacting DIFC Law No. 6 of 2018 (the "New DIFC Employment Law"). Under the New DIFC Employment Law (which is due to come into force by the end of 2018), the protected categories will be expanded to include age and pregnancy.
However, the fundamental change brought forth by the New DIFC Employment Law is the imposition of sanctions on those who breach it, solidifying the anti-discrimination regime in the DIFC. Where the DIFC Courts establish that a contravention of the anti-discriminatory provisions has occurred, the DIFC Courts will have the power to declare the rights of the complainant and the respondent in relation to the matters to which the proceedings relate and/or order the respondent to pay compensation to the complainant. If the respondent fails to comply with the decision of the DIFC Courts without a reasonable excuse, the DIFC Courts may either make a new compensation order, or increase the existing compensation order.
It remains evident however that although the UAE and the DIFC have taken steps towards regulating and limiting discriminatory practices, the frameworks currently in effect do not sufficiently address the totality of the problem, creating gaps in the protections offered to employees.
For more information, listen to Shiraz Sethi's interview with Tom Urqhart on Dubai Eye's "The Agenda":
Article co-authored by Shiraz Sethi, Middle East Managing Partner & Nicolas Pieri, Paralegal