Employers in the United Arab Emirates (UAE) need to be aware of their obligations to provide a safe system of work and the potential civil and/or criminal liability arising from accidents in the workplace. This article examines the top 5 employer strategies for dealing with workplace injury onshore in the UAE.
Strategy 1: Reporting workplace accidents to the police and the applicable labour authority
The UAE Federal Law No. 8 of 1980, as amended (Labour Law) imposes a number of obligations on employers regarding employee health and safety and managing employee injury, including reporting obligations.
Specifically, where an employee sustains an employment accident or contracts an occupational disease, under the Labour Law, the employer must immediately report the matter to the police and the Ministry of Labour (or the applicable Free Zone authority). Article 142 goes on to prescribe particular matters that must be contained in such a report including the employee's name, age, occupation, address and nationality, along with a summary of what occurred and the medical aid and/or treatment provided to the employee.
Ministerial Decision No. 851 of 2001 provides for additional penalties for certain breaches of the Labour Law (in addition to the fines and penalties set out in Articles 181 to 186 of the Labour Law). One such additional penalty applies where an employer fails to comply with its reporting obligations outlined above or where the employer fails to take measures against a danger threatening the health and safety of employees. In the event of such a breach, the employer's trade licence may be suspended and, in the case of an employer failing to take measure(s) against a danger threatening the health and safety of employees, procedures may be taken to wind-up the employer.
In addition, the applicable Labour Department may conduct safety inspections on employers at any given time. In the event of the relevant department finding evidence of non-compliance with the Labour Law in this regard, the penalties outlined above may be enforced against the employer.
Strategy 2: Understanding of the scope of the definition of 'Employment Injury'
Employers are liable to compensate employees as a result of 'Employment Injury'. Employers may not appreciate the breadth of the definition of 'Employment Injury' under the Labour Law which is defined as follows:
'[(i)] Any of the occupational diseases listed in the Schedule under this Law or [(ii)] any other accident sustained by the worker during the performance or as a result of his work. [(iii)] Any accident sustained by the worker on his way to or back from his work shall be deemed an Employment Injury provided that the trip to or from the place of work is made directly, without delay, default or diversion from the normal route.'
The use of the words any accident sustained 'during the performance or as a result of [the employee's] work' is very wide and could potentially include where an employee attends a networking function, for the purposes of meeting new business contacts, even where that function is not run by the employer.
In addition, the definition also extends to accidents sustained by employees to and from work, which is wide enough to extend to travel for business purposes, where there is no diversion from the normal route.
Strategy 3: Providing appropriate treatment and related transport costs
The Labour Law provides that where an employee sustains an employment accident or contracts an occupational disease, the employer shall pay for the cost of the employee's treatment (and related transport costs) until the employee recovers or his disability is confirmed. What if the particular treatment is not available locally and the employee asserts that they need to travel to another country to obtain treatment? Is the employer responsible for such treatment costs and the related travel costs?
Strictly speaking, under the Labour Law, an employer is only responsible for local treatment as Article 144 expressly states: '[w]here a worker sustains an employment accident … the employer shall pay for the cost of his treatment in a local government or private medical centre until he recovers or until he is disabled' (emphasis added). Therefore, if an employee insists that they require international treatment; an employer may refuse to pay for such treatment and associated travel costs as employer liability for payment of treatment does not extend to international treatment. Employers are only obliged to pay for an employee's medical treatment in a local medical facility.
Strategy 4: Collating documentary evidence in support of applicable exceptions to the liability to pay compensation
Under the Labour Law, employers are liable to pay injured employee's compensation on a strict liability / no fault basis. In the case of death of an employee, the compensation is equivalent to 24 months’ basic salary at the time of death (provided that the amount of compensation shall not be less than AED 18,000 or more than AED 35,000) and in the case of permanent injury, the compensation is a proportion of the amount payable on death, as set out in the schedules to the Labour Law, as amended from time to time.
Exceptions to the above apply where an employee's injury or disability (not resulting in death) are a result of the employee's deliberate actions, for example, where an employee attempts suicide, was under the influence of alcohol or drugs, intentionally violated safety instructions posted up on conspicuous positions in the workplace or the injury or disability was the result of gross and deliberate misconduct on the employee's part.
As part of the employer's investigation into the incident, it should consider whether any of the prescribed exemptions apply, and, if so, clear contemporaneous documentary evidence should be collected in support. For example, if it is asserted that the employee was injured as a result of intentionally violating safety instructions, photographs should be taken of the safety instructions posted around the workplace.
Strategy 5: Considering potential liability outside the Labour Law
In addition to an employee's potential rights under the Labour Law, employees can bring a claim against their employer under the Federal Law No. 5 of 1987, as amended (Civil Code). These claims are assessed separately to claims under the Labour Law.
Given the capped compensation under the Labour Law as outlined above, we are seeing employees commencing claims under the Civil Code rather than the Labour Law. In addition, under the Civil Code, the limitation period is 'three years from the day on which the victim became aware of the occurrence of the harm and of the identity of the person responsible for it' (Article 298) as opposed to 'one year from the date on which the entitlement became due' under the Labour Law (Article 6).
However, the provisions under the Civil Code differ from the strict liability provisions in the Labour Law. Article 283 of the Civil Code provides that harm may be direct or consequential and if the harm is direct 'it must be unconditionally made good and if it is consequential there must be a wrongful or deliberate element and the act must have led to the damage'.
In addition, Article 287 provides that if the employer proves that the loss arose out of an extraneous cause that the employer paid no part 'such as a natural disaster, unavoidable accident, force majeure, act of a third party, or act of the person suffering loss' the employer will not be bound to make the loss good (in the absence of a legal provision or agreement to the contrary). The Civil Code expressly permits the judge to reduce the level of damages/compensation if the employee participated in bringing about or aggravating the damage caused.
In addition, employers may have criminal liability under the Federal Law 3 of 1987, as amended (Penal Code). Although the Penal Code does not specifically relate to employee health and safety, it does impose criminal liability in certain circumstances as a result of acts and omissions causing personal injury or death. The Penal Code sets out the levels of compensation available which will extend to workers injured where employers are responsible for the act causing harm.
Employers should be aware of the applicable obligations that apply to them under local law and consider the potential liability arising from workplace injury. Employers should ensure that training is provided to employees regarding the procedure to be followed when a workplace accident occurs; including emphasising the importance of documenting what occurred.