Ensure that your company has clear annual leave, absence and
disciplinary policies in place and managers know how to follow such
procedures; and Consider preparing additional policies such as
alternative working arrangements for employees who are unable to
return to work on time due to potential travel disruption.
Whether your business operates in a free zone or non-free zone area in the UAE or the Dubai International Financial Centre ("DIFC"), your business may encounter summer or annual leave issues and you should ensure that managers know how to approach the following:
- Application of the company's annual leave policy; and
- What to do in the event of unauthorised absence or late return from annual leave.
Over the next few months, in particular, there may be occasions when an employee takes annual leave without approval and/or fails to return to work at the correct time following a period of annual leave, which may be due to travel disruption or simply unauthorised absence.
We therefore recommend that the company has a clear annual leave policy, which could include:
- The number of days annual leave that employees receive, making it clear whether the days are calculated using calendar or working days;
- Details regarding the accrual period i.e. the holiday year, which could be each year of an employee's service (calculated from the commencement date) or dates specified by the company;
- A specified maximum duration of any consecutive period of annual leave, for example a limitation on leave to no more than two consecutive weeks at any one time;
- The number of tranches of annual leave that may be taken during a year, for example, no more than three;
- An annual leave approval system, which might specify the prior notification period that is required for example, an employee must give at least a month's notice prior to the date he/she intends to take annual leave; and
- Reserve the company's right to request that employees take annual leave at periods specified by the company, as provided for in both the UAE Labour Law and DIFC Employment Law.
Absence and disciplinary policy
In the event that an employee takes unauthorised periods of absence ensure that the company has a clear absence policy, to include:
- A notification procedure for example, who to contact and at what time, in the event an employee is unable to attend work;
- What evidence the company might require for example, medical certificates; and
- Examples of authorised and unauthorised absence.
In conjunction with the above, ensure managers are aware of any
company disciplinary policy which might include penalties for
persistent absenteeism, in compliance with the UAE Labour Law
Can you summarily dismiss an employee who fails to return to work on time?
Where an employee fails to return to work on time following a period of annual leave, there are two potential courses of action that an employer could take: (i) dismissal for gross misconduct; and (ii) reporting the employee to the authorities for having absconded.
The UAE Labour Law contains an exhaustive list of examples that permit summary dismissal (i.e. termination of an employee without notice), such as consecutive absence for 7 days. Termination in accordance with Article 120 requires a high burden of proof on the employer's side. The DIFC Employment Law does not include an exhaustive list of examples; however the test to apply is to consider whether the employee's misconduct is such that "a reasonable employer" would have terminated the employee. In either jurisdiction, where an employee's whereabouts are known or the employee is unable to attend work due to events beyond their control, this is unlikely to justify summary dismissal. In any event, prior to a dismissal a reasonable disciplinary process should be carried out and well documented.
Reporting an employee as having absconded would only apply in limited scenarios, such as where an employee has not communicated with an employer for several weeks or even months, his/her whereabouts are genuinely unknown and it is suspected that the employee has left the country. Further, there is a set procedure to follow with the immigration authorities in order to report an employee as having absconded. The authorities will impose penalties against companies that falsely report an employee as having absconded.
Do you have to pay an employee who is unable to return to work on time through no fault of their own?
Where an employee's failure to return to work on time is attributable to an act of god, such as the volcanic ash from the Eyjafjallajökull volcano that disrupted flights earlier this year, strictly speaking under the UAE Labour Law and DIFC Employment Law, an employee is not entitled to pay during such period of absence, as the employee is not performing his/her duties. However, in order to avoid a negative affect on staff morale, where an employee's ability to return to work is through no fault of his/her own, the company could consider preparing a policy to explain the alternative options in the event of such an occurrence, for example:
- Remote working;
- Unpaid leave;
- Use of any days of untaken annual leave; and
- Discretionary pay, depending on the circumstances.
Al Tamimi's employment practice
Al Tamimi's employment practice can provide tailored guidance regarding the content of policies, procedures and handbooks, as well as advice on the full range of contentious and non-contentious employment issues.
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.