Many global UK and US companies, in an effort to make diversity a business imperative, have adopted management-driven programmes and diversity initiatives aimed at prohibiting discrimination on the basis of an employee's membership of a protected class. Under the general law of the UAE, discriminatory treatment that results in an employee being terminated gives rise to a claim for compensation under the provisions of the federal Labour Law. However, within the Dubai International Financial Centre (DIFC), there exists a statutory regime of protection against discrimination within the workplace.
In Brief:
- The DIFC is regarded as an autonomous jurisdiction within the UAE, with its own legal regime and self-governing court system and structure. Labour relations are governed by Employment Law No.4 of 2005 (DIFC Employment Law).
- Analogous to the UK and US anti-discrimination models, the DIFC Employment Law contains express provisions against workplace discrimination on the grounds of a person's gender, marital status, race, nationality, religion or disability.
- In contrast to the UK and US anti-discrimination models, to date, there is no effective remedy for compensation under the DIFC Employment Law for breach of laws prohibiting discrimination.
Discrimination models - DIFC as compared with position in the UK and US
DIFC
Protection from discrimination is provided by the DIFC Employment Law. The rationale of the DIFC Employment Law is to ensure, amongst other things, that all employees based within, or ordinarily working within or from, the DIFC, are treated in accordance with "minimum international standards and conditions of employment."
To succeed in a discrimination claim, the claimant must show that he or she has been subjected to differential treatment based upon either his or her gender, marital status, race, nationality or religion, mental or physical disability (protected characteristics) and that such treatment has had the net effect of either (i) imposing upon him or her burdens, obligations or disadvantages not imposed upon other persons or, (ii) limiting access to opportunities, benefits and advantages available to others. In the case of physical or mental disability, the condition must be long-term (i.e. not less than 12 months in duration). Allied to that, there exists a positive duty on the part of the employer to accommodate the disability by provision of reasonable adjustments, similar to the UK disability discrimination provisions (see below).
The DIFC Employment Law continues by providing that an employer shall not refuse to employ or refuse to continue to employ, or discriminate against a person regarding employment or any term or condition of employment because of a protected characteristic unless there is a bona fide occupational requirement. The Director of Employment Standards - the officer of the DIFC Authority responsible for the administration of the DIFC Employment Law - may determine what constitutes a bona fide occupational requirement.
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 and that it took reasonable measures to prevent the employees concerned from committing the acts in question.
Despite containing specific anti-discrimination provisions in relation to a person's protected characteristics, the DIFC Employment Law reveals a surprising gap in that it fails to provide for any effective (or indeed any) scheme of statutory compensation - be it for future loss of earnings or an award for injured feelings - for breach of laws prohibiting discrimination. That an employee in such circumstances should lack adequate redress is unexpected, given the unequivocal prohibition against discriminatory conduct.
The 2010 case of Shaw v Itau Securities Middle East Limited [DIFC, CFI 007/2010] sought to draw attention to this apparent gap in employment protection.The claimant brought an action under the DIFC Employment Law for sex discrimination against her employer, following the termination of her employment. Itau Securities Middle East, on the basis that Ms Shaw had no effective remedy for compensation under the DIFC Employment Law, made an application for immediate judgment. The claim settled before the immediate judgment application hearing and so the opportunity to reconcile the apparent inconsistency of legislative purpose or provide clarification on the scope of compensation was missed.
Looking to the future, it may be noted that the Director of Employment Standards has power to propose Regulations to the Board of Directors of the DIFC Authority in respect of any matter that facilitates the administration of the DIFC Employment Law or furthers the purpose of the DIFC Employment Law, including but not limited to proposals regarding the maximum compensation that should be awarded in cases of discrimination. However, as at the present date, no such rules have been issued. That being said, the Director of Employment Standards has wide power to adjudicate disputes between employer and employee, as well as matters relating to the interpretation of the DIFC Employment Law.
United Kingdom
In the UK, employees and workers generally now have the benefit of a broad range of protective legislation. Protection against discrimination on the grounds of race and sex has been in force in the UK since the 1970s. The scope of equality driven legislation has grown expansively since then, with legislation protecting employees and workers from discrimination on the basis of their sexual orientation, religion or belief, marital status, part-time or fixed-term employment status, disability, age, etc. The Equality Act, introduced in October 2010, has consolidated all existing strands of UK anti-discrimination laws already enacted into one self-contained regime, aimed at eradicating workplace inequality.
Crucially - as is the case under the DIFC Employment Law - statutory employment protection prohibiting discrimination is not subject to a qualifying minimum period of service (e.g. 12 months) but is instead available even prior to the commencement of the employment relationship. Indeed, such protection has extended the reach of discrimination protection to categories of employees and workers beyond those ordinarily considered to be within its "traditional" scope.
The Equality Act 2010 provides for different types of discrimination, principally the two categories identified as "direct" and "indirect" discrimination. Direct discrimination occurs when an individual is treated less favourably than others due to a protected characteristic (e.g. his or her sex, race etc.). By way of comparison, indirect discrimination occurs when an apparently neutral provision, criterion or practice is applied, but which has a disproportionately adverse affect on a specific category of individuals (e.g. a requirement to work full-time would disproportionately affect women, being the primary carers within a family).
In addition to direct and indirect discrimination, there also exists a concept of harassment (on the basis of a protected characteristic) and a category of victimisation - which essentially arises when an individual has asserted rights under anti-discrimination legislation and is consequently subjected to detrimental treatment.
The remedies open to individuals who suffer unlawful discrimination is expressly unlimited with compensation for injured feelings and any consequent personal injury being available (in addition to financial losses). Accordingly, the risks faced by a company alleged to have unlawfully discriminated against a person can be significant both from a financial as well as a reputational perspective.
United States
In the US, protection against discrimination in employment is prohibited by a number of federal, state and local laws. Federal law, similar in certain respects to the DIFC Employment Law, prohibits discrimination in the field of employment on the grounds of certain protected characteristics, namely, race, colour, national origin, sex, pregnancy, religion, age, disability, citizenship status, genetic information, military affiliation. In addition, there also exists a prohibition against retaliatory action against employees who contest or engage in proceedings challenging prohibited discriminatory conduct (akin to the victimisation provisions under the UK Equality Act 2010).
In addition, certain state laws and local laws, contain parallel prohibitions, outlawing discrimination on the basis of, inter alia, marital and/or familial status, gender identity, political affiliation and language abilities.
The law of discrimination covers all aspects of employment including recruitment, access to opportunities for promotion, transfer, training and any other benefits, and dismissal (often referred to as "adverse actions"). The worker must be able to show a causal link between the adverse action and the relevant protected characteristic.
A specific offence of workplace harassment is also prohibited and, employees who are subjected to retaliatory action on account of them having raised issues or concerns about unlawful discriminatory behaviour or harassment are similarly protected. Again, a causal link needs to be established.
Practical steps
The fact that there is anti-discrimination legislation in place in the DIFC ought from a practical perspective not to hinder the efficient and effective management of a global business.
Employers with genuine equal opportunity attitudes that advance or support diversity will find themselves much less likely to be subjected to allegations of unlawful discrimination. Striking the right balance is critical and, in this regard, there are recommended courses of action that multi-national companies operating under the DIFC framework can follow, including:
- familiarisation with the relevant anti-discrimination provisions
- having in place a clear and robust equal opportunities policy that is issued to all employees at every level of the company
- ensuring that all employees receive training on the equal opportunities policy and, in addition, that those managers and HR professionals responsible for enacting the policy receive adequate training on how to deal with complaints made under it
- ensuring that employment policies and practices are reviewed and audited on a regular basis in order to establish the existence of any patterns that may indicate underlying or unintentional discrimination.
Whilst the DIFC's anti-discrimination provisions will invariably provide a degree of transparency and familiarity for global companies with, in particular, a multinational, multi-racial workforce, the underlying aim - to promote fair treatment and equal employment opportunity - should form the cornerstone of every business. This will go a long way to promoting and fostering an environment of diversity inclusion, a critical factor to business success.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
