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.
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
(where applicable).
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.
