Background information on applicants

Background checks

Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?

The Labour Law imposes no restrictions on background checks on applicants. Checks can be conducted by a third party or by the employer. The Dubai International Financial Centre (DIFC) Employment Law and the Abu Dhabi Global Market (ADGM) Employment Regulations similarly impose no such restrictions on background checks.

Medical examinations

Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?

There are no restrictions on employer-imposed medical examinations. An employer can refuse to hire an applicant who does not submit to a medical examination.

Moreover, because foreign nationals are a majority of the workforce in the UAE, medical examinations are a routine part of the hiring process. One of the requirements for obtaining a residence visa in the United Arab Emirates (UAE) is to pass a medical examination at a government-approved hospital or clinic. A prospective employee is screened for HIV, hepatitis B and C, leprosy and tuberculosis before being granted a residence visa. A positive result in any of these tests will result in the prospective employee being rejected for a residence visa and deported to his or her home country.

Drug and alcohol testing

Are there any restrictions or prohibitions against drug and alcohol testing of applicants?

There are no restrictions on employer-imposed drug and alcohol testing. An employer can refuse to hire an applicant who does not submit to testing.

Further, the prohibitions in the UAE on the possession and use of drugs are very strict. Therefore, a positive test result before hiring would indicate criminal activity, which would be another reason to refuse to hire the applicant.

The DIFC Employment Law and the ADGM Employment Regulations similarly do not provide any restrictions or prohibitions against drug and alcohol testing.

Hiring of employees

Preference and discrimination

Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?

The Labour Law and various ministerial decisions contain the following provisions that are favourable to the hiring of United Arab Emirates (UAE) nationals.

  • UAE nationals have priority to work in the UAE. Persons of other nationalities can only be employed in the private sector if there are no unemployed nationals capable of undertaking the role and if there is appropriate approval from the authorities and they obtain a residence visa and labour (or identity) card. The foreign employee must also have the professional competence or educational qualification that the state requires.
  • If no UAE national is available to take up a position, preference must first be given to persons who are nationals of an Arab country, and then to persons of other nationalities.

Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?

As part of the residence visa and labour card application process, an employee must receive a written offer letter from the prospective employer. Thereafter, the parties must enter into a standard-template dual-language contract provided by the Ministry of Human Resources and Emiratisation, the terms of which must comply with the terms of the offer letter. Under the Labour Law, the contract must specify:

  • the start date and duration of the employment (which may be for an unspecified period);
  • the nature (ie, job title);
  • the place of employment; and
  • the salary.

 

Some free zones require the parties to enter into employment contracts using a template specific to the relevant free zone. Subject to the provisions of the Labour Law, the information that must be included in employment contracts varies among the free zones.

The Dubai International Financial Centre (DIFC) Employment Law requires employers to provide their employees with a written contract of employment. The contract of employment must specify:

  • the names of the employer and employee;
  • the start date;
  • the employee’s wages;
  • the applicable pay period;
  • the terms and conditions relating to hours of work;
  • the terms and conditions relating to:
    • vacation leave and vacation pay;
    • national holidays and pay for national holidays;
    • sick leave and sick pay;
    • the length of notice that the employee and employer must give and receive to terminate the employment;
    • the employee’s job title or a brief description of his or her work;
    • the period for which the employment is expected to continue or, if it is for a fixed term, the date when it is to end (where the employment is temporary);
    • the place of work;
    • applicable disciplinary rules and grievances procedures;
    • any applicable probationary period up to a maximum of six months;
    • a reference to any applicable policies and procedures, including any code of conduct, and where these can be accessed; and
    • any other matter that may be prescribed in any regulations issued under the DIFC Employment Law.

 

The DIFC Employment Law requires that if an employer intends any employment term to be subject to its policies, and so can be changed at the employer’s discretion, then this must be expressly provided for in the employment contract.

The Abu Dhabi Global Market (ADGM) Employment Regulations require that the contract of employment shall include as a minimum:

  • the names of the employer and employee;
  • the date when the employment began, or is to begin;
  • the employee’s wages;
  • the applicable pay period;
  • any terms and conditions relating to hours or days of work;
  • any terms and conditions relating to:
    • vacation leave and vacation pay, national holidays and pay for those national holidays;
    • sick leave and sick pay;
    • the length of notice that the employee and the employer is obliged to give and is entitled to receive to terminate the employment;
    • the title of the employee’s job or a brief description of the employee’s work;
    • the period for which the employment is expected to continue if it is not intended to be for an indefinite duration, or the date when it is to end if it is fixed term;
    • the place of work;
    • any disciplinary rules or grievance procedures applicable to the employee; and
    • any other matter that may be prescribed by the Board by rules.

 

Further, the ADGM Employment Regulations require that the employment contract must expressly state in writing the matters relating to the employment of the employee that are subject to the employer’s policies (if any) that may be changed at the employer’s discretion from time to time by way of a written notice to the employee.

To what extent are fixed-term employment contracts permissible?

The Labour Law permits fixed-term employment contracts; however, many employers prefer not to use them because those contracts are difficult to terminate. The Labour Law limits the duration of a fixed-term contract to four years; however, it can be renewed if both parties agree for one or more similar or shorter periods.

The DIFC Employment Law and the ADGM Employment Regulations permit fixed-term contracts; however, there is no specification as to the maximum duration of those contracts.

Probationary period

What is the maximum probationary period permitted by law?

The Labour Law allows a maximum of six months’ probationary period. This maximum period may not be extended. If the employee is successful in completing the probationary period, then the probationary period will be considered to be part of the employee’s period of continuous service.

The DIFC Employment Law and the ADGM Employment Regulations state that an employer may impose a probationary period of up to a maximum of six months.

Classification as contractor or employee

What are the primary factors that distinguish an independent contractor from an employee?

Under the Labour Law, an employee is any person who receives remuneration of any kind for legitimate work performed in the service of an employer and under its supervision or control. The definition of ‘employee’ also includes officers and staff who are in the employer’s service and subject to the provisions of the Labour Law. In the UAE, an employer is required to obtain a labour permit for an employee who is not a UAE national.

By contrast, an independent contractor is an individual or corporate entity that provides services, but without the element of supervision or control that characterises the employment relationship. The employer of an independent contractor does not typically obtain a labour permit for the independent contractor, and the relationship is generally viewed as being outside the scope of the Labour Law.

Temporary agency staffing

Is there any legislation governing temporary staffing through recruitment agencies?

The employer of a proposed non-UAE national employee must obtain a UAE residence visa for the employee (except for an employee whose UAE residence visa is sponsored by the head of household) and a UAE labour permit. Regarding recruitment agencies, an agency may employ an employee directly by sponsoring the employee’s residence visa and labour permit. In such a case, the employee would be deployed to the workplace of the recruitment agency’s client, under a personal secondment agreement. The personal secondment agreement must be approved by and filed with the Ministry of Human Resources and Emiratisation. The recruitment agency would be primarily responsible to the employee for all the employee’s employment entitlements.

In some cases, the recruitment agency instead recruits an employee for its client, but then requires the client to sponsor the prospective employee’s UAE residence visa and labour permit. In this case, the employer would be responsible to the employee for all the employment entitlements.

In both cases, the terms of the employment contract must comply with the terms of the offer letter.