Avoid Illegal Job Requirements Under the UAE’s Discrimination Laws.
Gaining an understanding of developments in the legal sphere, regarding discrimination laws and their influence on the workplace, should be a top priority for anybody looking to hire employees in the UAE. This is not only the responsibility of the HR department (or the person scripting job adverts in smaller organisations), but also management. There are situations where the consequences of breaking the law can lead to criminal proceedings against directors, agents and representatives of a firm too.
First we look at the UAE anti-discrimination law of 2015, which was not specifically designed for employment purposes yet has a material impact and then we will have a look at the differences inside the DIFC and AGDM free-zones. Both of these free-zones have very specific sections on discrimination within their own employment laws to bear in mind, if seeking talent for roles there.
The UAE’s law on Combating Discrimination and Hatred
The UAE’s Federal Decree Law No. 2 of 2015 On Combating Discrimination and Hatred defines discrimination as:
Any distinction, restriction, exclusion or preference among individuals or groups based on the ground of religion, creed, doctrine, sect, caste, race, colour or ethnic origin.
We can see that Article 6 of the law stipulates:
Any person, who commits any act of discrimination of any form by any means of expression or by any other means, shall be sentenced to imprisonment for a period not less than five years, and by a fine not less than five hundred thousand dirhams and not exceeding one million dirhams or either one of these two penalties.
Next we need to look at whether there is a particular definition of the word “means” used in the law. This is found at the top and is defined as:
The Internet, telecommunication networks, electronic websites, industrial materials, means of information technology or any other means of audio-visual and print.
So we can conclude at this point, that job advertisements in the newspaper or published online would be deemed illegally discriminatory if they restricted or excluded those of certain religions, creeds, doctrines, sects, castes, races, colours or ethnic origins from applying. With potentially some very hefty fines and prison sentences involved for doing so.
We mentioned that such penalties may also affect others in the company, where an employee breaks an element of this law but others have knowledge of it. This appears in Article 17, which states:
The representative, director or agent of a legal entity, in case any of the crimes set forth in the present Decree Law is committed, with his knowledge, by any employee of said entity acting in its name or to its interest, shall be sentenced to the same penalties prescribed for the committed crime.
The legal entity shall be held jointly liable to settle any pecuniary penalties or compensation as ruled thereof.
Therefore management should drive awareness concerning this from the top down and make sure that protocols are in place in order to avoid such a scenario. This evidently extends well beyond attracting talent and may encompass all communications by employees in their day to day business.
The Law in Practice
It should be noted that this law will not interfere with the preferential treatment afforded to UAE nationals under Emiratisation initiatives found within Article 10 of the UAE Labor Law. This states employers are instructed to seek UAE nationals for employment as a matter of priority, followed by other Arab state nationals, before finally other foreigners.
There is the well known case of the Happy Jump Nursery in Dubai which tried, innocently in their view, to enact ‘positive discrimination’ in order to balance their work force. They wished to diversify their predominantly dark skinned workforce by writing a job advert for a white skinned person, which is not allowed under this law.
Technically the UAE’s discrimination law (or rather its English translation) does not mention age, appearance nor gender. Nationality is not specifically mentioned either but might be in some way be argued a be a subdivision of race or ethnicity. For example in the UK’s Equality Act 2010, nationality is specifically regarded to be included under the definition of race. Evidently any employer should look to do away with wider discrimination than the limited definitions provided for here anyway, simply as a matter of good practice.
A little further clarity was however issued after the furore over the nursery advert. In this article in The National newspaper, Assistant Undersecretary of the Ministry of Human Resources and Emiratisation, Dr Omar Al Nuaimi was quoted as mentioning gender when saying:
“The UAE is a signatory to the 1974 International Convention on the Elimination of All Forms of Racial Discrimination, and the 2001 ILO Convention on the Prohibition of Discrimination in Employment and Occupations, which prohibit discrimination on the basis of race, gender or faith. National legislation also explicitly outlaws discrimination, whether in job advertisements or elsewhere.”
So it would be wise to not discriminate in job adverts on the basis of gender either, although some types of work, at night in particular, are illegal for women to undertake under Chapter 3 on Women Labor in the UAE Labor Law. Notably it is also prohibited under Article 29 of the same Chapter for women to work in, “hazardous, strenuous or physically or morally harmful jobs.” So in these cases it should be clearly mentioned that the work is only suitable for males, so as not to breach those legal requirements either.
It is also worth noting that more recently worded laws for employment go further in their anti-discrimination wording. For example the Federal Law no. (10) of 2017 on Domestic Workers under the ‘Recruitment Agencies’ section, Article 3a. forbids:
Discrimination among workers on the basis of race, color, gender, religion, political opinion, national or social origin.
What About Freezones With Their Own Employment Law?
Looking at the few freezones in the UAE which have their own jurisdiction, courts and employment laws, they handle discrimination slightly differently; specifically the DIFC (Dubai International Financial Centre) and the ADGM (Abu Dhabi Global Market).
The DIFC Employment Law No 2 2019 handles discrimination under Part 9, 59(1), where employers will not discriminate any condition of employment based on:
(a) sex; (b) marital status; (c) race; (d) nationality; (e) age; (f) pregnancy and maternity; (g) religion; or (h) mental or physical disability.
Immediately we can see that discrimination of the sexes is outlawed in general. By comparison, the UAE Labor Law stipulates that the same wages must be paid for both men and women undertaking the same work (Article 32). The DIFC law mentions specific references to banning discrimination with regards to both nationality and age, both of which employers have sought to filter for in the past. In addition they also highlight the protection of those affected by disability (people of determination), pregnancy and marital status too.
Under the ADGM’s employment regulations 2015, Part 8 55(1) handles discrimination and refers similarly to:
(a) sex; (b) marital status; (c) race; (d) nationality; (e) religion; (f) age; and/or (g) disability
Only missing off a specific mention of pregnancy compared to DIFC which would likely be seen as incorporated under discrimination between sexes anyway.
Across the globe discrimination in the employment process continues to be addressed by new protections for those previously placed at a disadvantage. The recent anti discrimination and hatred law in the UAE, while targeted perhaps more towards general tolerance in a multicultural society, has significantly contributed towards a fairer hiring process too. We hope this article provides some clarity on what can and can’t be included when posting job adverts presently and the general direction of the local laws moving ahead.
Where is Technology On This?
As technology advances in this area there are interesting efforts to anonymise applicants’ data in order to hide anything which might confer a bias or an unfair advantage, even down to the education institutions they have attended. Then there are more obvious things like, name, nationality age or gender. What should ideally be focused on though, is the pure capability of the applicant to do the job better than competing applicants.
In an upcoming article, we examine differing approaches that several new technology companies are taking in their aim to secure recruiting utopia. However, we discover how some of these ‘innovators’ are in reality creating discriminatory software in order to manufacture an opposing bias to what is perceived to already exist, so as to produce the ‘ideal’ perceived workforce mix. We analyse why this approach looks flawed and offer more palatable options that factor in supply and demand considerations too.
