Equality in the DIFC

- Written by Mandeep Kalsi, Senior Associate at Al Tamimi & Co.

The Dubai International Financial Centre (DIFC) is a federal financial free zone which, in contrast to the other UAE free trade zones, has its own set of unique laws and regulations, including an employment law.  One of the guiding principles of the DIFC Employment Law is the promotion of fair and equitable treatment between employers and employees; a principle which the DIFC has sought to achieve through the introduction of express anti-discrimination provisions which prohibit discriminatory treatment or conduct on the basis of an employee’s membership of a protected class (specifically, sex, marital status, race, nationality, religion and/or mental or physical disability (together, the “Protected Classes”)).

Unlawful discrimination 

Under the DIFC Employment Law, unlawful discrimination against an employee is divided into three categories:

• direct discrimination: less favourable treatment on one of the Protected Classes.

• indirect discrimination: the application of neutral criteria which put employees of a particular Protected Class at a disadvantage not faced by others who do not share that Particular Class.  For example, a requirement for all staff to be on-site on a Friday lunchtime would disproportionately affect Muslims as Friday prayers take place at that time (salat al-jumu’ah).

• harassment: unwanted treatment or conduct which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive workplace.

An employee is considered to have a disability if he has a mental or physical impairment which has a substantial and long-term adverse effect on his ability to carry out his duties in accordance with the employment contract. An impairment has a long-term effect if it has lasted at least 12 months or is likely to last at least 12 months.  If the employer fails to make reasonable adjustments to any physical feature of the workplace or the applicable provisions or practices of the employer would, if made, enable the employee to otherwise meet the genuine occupational requirement, this will amount to disability discrimination.

Whilst an employer can defend direct and indirect discrimination based on genuine requirements of the job, harassment cannot be justified on such grounds.

Positive Discrimination

In many countries, the concept of positive discrimination (that is, treating one person more favourably than another because of their membership of a particular Protected Class) is generally prohibited in the workplace context. Under the DIFC Employment Law, employers are permitted to positively discriminate in favour of disadvantaged groups, including (but not limited to) those that are disadvantaged because of mental or physical disability.

There are also separate (and specific) positive discrimination provisions in the DIFC Employment Law such as reduced working hours for fasting Muslim employees during the Holy Month of Ramadan.

Pregnant employees 

Additional protections for pregnant women are laid down in the DIFC Employment Law, which provides that an employer shall not, because of an employee’s pregnancy or maternity leave, terminate employment or change the position or condition of employment without the employee’s prior written consent.  Moreover, an employee has the right to return to work at the end of maternity leave to the same role or a suitable alternative on the same terms and conditions, and with same seniority rights she would have had had she not taken maternity leave.

Compensation for discrimination

The DIFC Employment Law fails to expressly provide for any scheme of compensation (such as future loss of earnings or an award for injury to feelings) for breach of the laws prohibiting discrimination. It is therefore, at present, unclear what approach or test the DIFC Courts will apply in determining the level of compensation to be awarded for a successful claim.

Vicarious liability 

Under the DIFC Employment Law, an employer may also be held “vicariously liable” for the actions of its employees (e.g. for bullying or harassment) committed in the course of employment. In order to avoid liability, an employer must demonstrate that the employees responsible for the bullying, harassment, etc., acted outside the course of their employment or that it took reasonable measures to prevent the employees concerned from committing the acts in question.

It is therefore important for employers to be mindful of and lay down anti-discrimination and equality policies from the very outset, and ensure employees are familiar with the legal framework in which they operate.