On 30 August 2019, the DIFC’s new Employment Law (“the New Law”) came into force. Though the drafting of the New Law marks, in its detail, a notable departure from both the old law (of 2005) and the draft law, largely similar provisions have been in force for the best part of 15 years. However, as the DIFC Court recognised in Hana Al Herz v DIFC Authority  DIFC CA 004, there was no entitlement to damages for breach of the earlier discrimination provisions. That has been rectified. Practitioners can thus expect close scrutiny of the New Law and the discrimination protections it provides.
Substantively and procedurally, the New Law’s provisions on discrimination will be recognisable to UK employment lawyers: much of the language of Part 9 of the New Law has been taken largely without modification from the Equality Act 2010 (“EqA”) (though the drafting of the New Law is arguably more user friendly). However, there are important differences of which UK employment practitioners with offshore practices ought to take note.
The starting point is Art. 59 of the New Law, which provides that:
|(1)||An employer must not discriminate against an Employee regarding employment or any term or condition of employment on the grounds of the Employee’s:|
|(f)||Pregnancy and maternity;|
|(h)||Mental or physical disability.|
|(2)||Discrimination for the purposes of Article 59(1) means where:|
|(a)||An Employee is treated less favourably than another is or would be treated in the same circumstances, or put at a disadvantage not faced by others, because of a prohibited ground in Article 59(1);|
|(b)||provision, criterion or practice is applied to an Employee which is discriminatory in relation to one (1) of the grounds in Article 59(1);|
|(c)||An Employer engages in unwanted treatment or conduct related to one (1) of the prohibited grounds which has the purpose or effect of creating an intimidating, hostile, degrading or offensive workplace for an Employee or violates an Employee’s dignity; or|
|(d)||Article 59(8)(b) or (d) applies [reasonable and discrimination arising from disability].|
It is worth noting that “protected characteristic” is not a term of art used in the New Law which instead refers on the one hand to “prohibited grounds” or simply “the grounds in Article 59(1)” and on the other – in the context of reasonable adjustments – to “the characteristics of [an Employee]”. Further, the New Law appears only to offer protection against discrimination on the grounds of the employee’s protected characteristics (no-one else’s). This would appear to exclude the possibility of claims of associative or perceptive discrimination. It would also appear to exclude the possibility of a claim of harassment being brought (pursuant to Art. 59(2)(c)) where the unwanted treatment or conduct relates to another’s characteristic.
The definition of disability in the New Law is markedly and conceptually different from that contained in EqA s. 6. It provides, at Art 59(8)(a), that ‘an Employee has a mental or physical impairment or illness which has a substantial and long-term adverse effect on the Employee’s ability to carry out duties to an Employer, which has lasted at least twelve (12) months or it is likely to last at least twelve (12) months.’ The focus is not, as in UK law, on the employee’s ability to carry out normal day-to-day activities in a general way but, rather, his or her ability to “carry out duties to an Employer”. This focus on work rather than daily life is in large measure attractive: it offers broader protections to an employee who, though able to perform day-to-day activities is not able to perform the core activities of his or her role. It is also more aligned to the principle at the heart of the EU’s Equal Treatment Framework Directive that the law on disability discrimination should be targeted at people’s ability to access and remain at work and to the definition of disability in the CJEU case law: ‘a limitation that results in particular from physical, mental or psychological impairments, hinders the participation of the person concerned in professional life, and is likely to last for a long time’ (Chacon Navas v Eurest Colectividades SA (C-13/05)  IRLR 706).
The definition throws up its own interesting questions. It does not specify what duties are to be scrutinised: need the adverse effect be on all duties, any one duty or the core duties? Presumably, the Employer in question need not be the Employer against which any claim is made (thus “an Employer”) but the drafting seems to leave open the possibility that an employee could have a disability vis-à-vis one employer, but not vis-à-vis another: a given “illness or impairment” may render a labourer unable to carry out duties to his employer, but not an office worker. The focus on a disabled employee’s ability to “do the job” is further reflected in the drafting of the reasonable adjustments duty: it is only engaged where the employee is put at a substantial disadvantage by a genuine occupational requirement and where the adjustment would allow the employee to satisfy the requirement.
The forms of prohibited conduct enumerated at Art. 59(2) will be familiar to UK employment lawyers, but there are important and interesting differences.
The drafting of Art. 59(2)(a) – akin to direct discrimination – includes, in addition to the familiar concept of “less favourable treatment” a provision against being “put at a disadvantage not faced by others”. Whereas the comparison for less favourable treatment is with “another”, the disadvantage provision appears to require comparison with a group of “others” albeit there is no ostensible requirement that the group does not share the relevant protected characteristic.
Further, it is curious that the drafting of Art. 59(2)(a) homes in on treatment or disadvantage because of “a protected ground in Article 59(1)”, but that Arts. 59(2)(b) and (c) refer to “one (1) of the protected grounds”, the inclusion of the numeral suggesting that the precise number is important: what if the unwanted conduct relates to two (2) of the protected grounds?
As noted above, the requirement to make reasonable adjustments only applies in the context of a “genuine occupational requirement” which, in the drafting of the New Law, an employer may “apply…to Article 59(2)(a), (b), (c) or (d)” (Art. 59(7)) and which is defined as a “requirement reasonably necessary for normal performance of a particular role or occupation” (Art. 59(8)).
Clearly, the drafting of the New Law gives rise to a lot of food for thought and it will be interesting to see how the DIFC Court deals with the issues identified.
Members of Littleton’s Dubai Group have been in many of the seminal employment cases in the DIFC Courts in recent years, in both the fields of statutory employment law and business protection. For more information please contact firstname.lastname@example.org.