Employment Relations: Discrimination under UAE Labour Law

In 2021, the UAE updated and overhauled the Federal Labour Law, which had been in operation since 1980. The ‘new labour law’ effectively repealed the previous law and introduced new elements and legal obligations.

Anti-discrimination law is not really new to the UAE. In 2015, law (2) 2015 was enacted to specifically address discrimination and hate speech. Although this law falls under the criminal code, there were elements that applied to employment, particularly Art 17 that establishes vicariously liability and Art 9, that applies to Public employees committing certain acts during the course of their duties.

The 2015 law was broadly defined and did not automatically carry a legal obligation for employers to directly combat discrimination within the workplace. Furthermore, as this law falls under the criminal code, the ability for an employee to seek resolution outside of the criminal process was not available.

In 2021 this changed, with the introduction of the revised UAE Labour law, Law (33) 2021. The revised law firmly enshrined discrimination within the labour law and extended the 2015 law to ensure that companies now had legal obligations to tackle discrimination.

The 2021 law provides a rather broad approach to discrimination, pretty much like the 2015 law before it. Whilst it may appear to lack definition, the UAE approach has been more of a commonsense approach rather than an attempt to define each and every possible situation that may arise.

The 2021 law prohibits any discrimination “…on the basis of race, colour, sex, religion, national or social origin or disability which would have the effect of nullifying or impairing equality of opportunity, or prejudicing equal treatment in the employment, the maintenance of a job and the enjoyment of its benefits…” (Art 4.1).

So, what exactly does the new law oblige Employers to do?

The law itself offers protection in the first instance in the area of promotion, whereby impairing equality of opportunity is prohibited. The law then goes further to ensure that employees are granted equal treatment within the workplace. This part does not mean however that if you offer ‘a top of the range’ medical insurance package to a director, then you must offer everyone the same. What it means is that all employees should be offered a medical insurance package and not deprived of insurance because of their ‘protected characteristic’.

This is an important aspect of 2021 law, insofar as it does not seek to prevent employers from offering different packages, such as salary, level of insurance and such but that all employees of the same level must be offered the same benefits and opportunity. This raises an important point, is there an equal pay provision contained within Art 4 2021 Law? The answer is not that straight forward, because it is both yes and no.

Art 4.4 does include an equal pay provision, but only in relation to gender, insofar as if a woman performs the same work or work of equal value, she cannot be paid less than the man. This is not the all-encompassing discrimination criteria defined in Art 4.1 and it does not extend past women who perform the same work or work of equal value. Nevertheless, it could be considered that where employees are engaged in similar tasks, or work of equal value, then they should be treated equally. If that extends to equal pay is something that is yet to be seen.

Another important aspect of the revised law is where the burden of proof lies. Generally, in the UAE, the burden of proof vests in the party bringing the claim, in cases of discrimination it would fall on the employee to prove that they had been denied opportunity due to one of the criteria listed. This is similar to the burden of proof in English employment claims for discrimination and upon initial consideration it appears that the UAE will adopt a similar approach.

This means that the employer is not required to prove that they did not discriminate, nor do they need to prove that they had mechanisms in place to prevent discrimination, although they are vitally important and offer employers a way to mitigate against any potential claims.

Does Art 4 include both direct and indirect discrimination?

Direct discrimination, is where someone is denied opportunity or equal treatment based on the characteristics defined in the Article. Indirect discrimination is where a group that falls under the criteria faces a disadvantage over another group that does not have that characteristic.

The wording of Art 4 suggests that the discrimination prohibited is that of direct discrimination and that indirect discrimination, whilst not expressly excluded, is not strictly provided for. Notwithstanding this, the complainant is required to prove that they were denied opportunity or faced unequal treatment on grounds of discrimination, be that direct or indirect discrimination. Whilst indirect discrimination may very well be captured, it is extremely difficult to prove and complainants will face a high bar in establishing indirect discrimination.

Conclusion

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.