1. What is the DIFC Presidential Directive No. 4 of 2020?
DIFC Presidential Directive No. 4 of 2020 in Respect of COVID-19 Emergency Measures (the "Directive") sets out the temporary measures that DIFC companies can implement during the emergency period in order to deal with the impact of the COVID-19 pandemic.
Click Here for the Directive
2. How long is the emergency period under the Directive?
The Directive was issued on the 21 April 2020 by the President of the DIFC in an effort to limit the impact of the COVID-19 pandemic on employers and employees in the DIFC. The emergency period starts on 21 April 2020 and terminates on 31 July 2020 (the "Emergency Period"), unless amended by further legislation.
3. What are the emergency measures that employers can institute during the Emergency Period?
According to the Directive, employers can adopt a number of emergency measures without the employees consent. Employers are now able to:
Any employer wishing to implement any or all of the above emergency measures must provide employees with five (5) days' notice in writing.
4. Can employers affected by COVID-19 terminate employees?
Yes. As the Directive does not provide employees or employers with powers to terminate the employment relationship, Article 62 of the DIFC Employment Law No. 2 of 2019, as amended (the "DIFC Employment Law"), shall apply. Article 62 mandates that employers and employees can terminate the employment relationship provided either party has given a minimum written notice of:
If the employment contract stipulates a longer notice period than the abovementioned statutory notice periods, the longer contractual notice period shall apply.
Whilst the law does not allow employers and employees to agree to shorter notice periods unless a settlement agreement is signed by the parties, employers and employees may waive the notice period if termination is for cause.
5. Are employers permitted to reduce employees' salary without their consent?
Yes. Article 6 of the Directive allows employers to reduce employees' remuneration without obtaining the employees' consent. However, such salary reduction is temporary and may only be imposed during the Emergency Period. Additionally, employers must provide employees with five (5) days' notice in writing prior to implementing a temporary salary reduction.
6. Are employers allowed to place employees on unpaid leave for an unlimited period of time?
No. Article 6 of the Directive only allows employers to place employees on paid or unpaid leave, without obtaining their consent, for the duration of the Emergency Period. Employers must provide employees with five (5) days' notice in writing prior to placing employees on paid or unpaid leave.
7. What are the sick leave provisions that apply to employees with COVID-19?
Article 7 of the Directive mandates that employees who have contracted COVID-19 and/or have been quarantined by the local authorities in order to limit the spread of COVID-19 shall be paid their full remuneration for the entire period of the COVID-19 sick leave. Therefore, such COVID-19 sick leave shall not count towards an employee's regular sick leave entitlement under the DIFC Employment Law. Moreover, during a period of COVID-19 sick leave, employers cannot subject employees to reduced working hours, forced annual leave (with or without pay), reduced remuneration or apply restrictions on workplace access and remote working conditions that did not apply to them prior to taking COVID-19 sick leave.
8. Is your employer obliged to pay your end of service gratuity during the Emergency Period?
Yes. An employee who has completed one (1) year or more of continuous service is entitled to an end of service gratuity payment upon termination of employment calculated at the following rates:
If an employee is entitled to contributions into the DIFC Employee Workplace Savings Scheme (or an alternative qualifying scheme), for the purposes of calculating their end of service gratuity entitlement, their qualifying period of service shall start from the employment commencement date and run until 31 January 2020.
Employees remain entitled to end of service gratuity irrespective of the reason for their termination, including termination for cause.
The total of the gratuity shall not exceed an amount equivalent to the total wages of two (2) years of service.
9. Is your employer obliged to continue providing you with accommodation and medical insurance if you are terminated as a result of COVID-19 or otherwise?
There is no legal obligation on the employer to provide accommodation and medical insurance for an employee who has been terminated and residency visa has been cancelled. However, Article 9 of the Directive allows an employer to delay the residency visa cancellation process for an employee terminated between 1 March 2020 and 31 July 2020, provided that the employer continues to provide medical insurance during this period. If the employer is in the retail, service or hospitality industry and the employee was dependent on the employer for accommodation, the employer must continue to provide accommodation for the terminated employee until their residence visa is cancelled.
10. Can your employer recover the costs it has incurred with respect to your recruitment and visa application?
Article 21(3) of the DIFC Employment Law states that reasonable recruitment costs may be recovered by the employer if: 1) the employee has resigned within six (6) months of commencing employment; 2) the employee has not resigned for cause; 3) the costs were directly incurred in the recruitment of the employee; 4) the employer has evidence of the costs incurred; and 5) the costs are specified in the employee's employment contract as recoverable. The DIFC Employment Law however clearly stipulates that residence visa and work permit costs are not recoverable by employers. Employers who breach the aforementioned are liable to a fine of USD 2,000.
11. Are you entitled to an annual flight ticket allowance?
There is no legal obligation requiring employers to provide employees with an annual flight allowance. This is a benefit that may be offered to employees on a discretionary basis. Such entitlement will typically be contained in the employment contract or the employer's policies and procedures.
It should be noted however that the employer is required to repatriate an employee to their home country on termination if the employee does not intend to remain in the UAE and does not secure alternative employment.
12. Is your employer entitled to withhold your passport?
Employers are not entitled to withhold employees' passports. In doing so, employers are liable to a fine of USD 2,000 per breach.
13. Can an employer reduce an employee's working hours?
Article 6 of the Directive permits an employer to reduce an employee's working hours without their consent, but must provide five (5) days' notice.
14. What if an employee is terminated and not paid their dues? What are the employee's options?
Article 19 of the DIFC Employment Law states that an employer must pay all amounts owed to an employee within fourteen (14) days of termination. If the employer fails to comply with the aforementioned, an employee may file a claim before the DIFC Courts in order to secure their outstanding dues. It should be noted that if the amounts owed are in excess of the employee's weekly wage, the employee will be entitled to claim a daily penalty equivalent to their last daily wage for each day the employer is in arrears.
The SCT is a forum in which claimants can bring employment claims up to a value of AED 500,000. Whilst any claim over and above the AED 500,000 threshold would automatically fall within the ambit of the CFI, employees and employers may bring such a claim before the SCT if both parties consent. The key differences between the two forums is that in the CFI, the parties may have legal representation, the losing party is likely to be ordered to pay the winning party's legal costs and proceedings are public. The SCT however is a private forum where each party pays its own costs and must represent itself in court proceedings unless express permission is sought from the Court.
16. How do I file a claim against my previous employer?
You can file a claim before the SCT directly online. Please visit the DIFC Courts website (https://eregistry.difccourts.ae/), select "Forms" on the top left corner, then "Small Claims Tribunal" and then "Small Claims Tribunal Claim Form (P53)". Subsequently, you will need to populate the form with the requested details and attach any additional documents (such as your employment contract).
You can file a claim before the CFI directly online. Please visit the DIFC Courts website (https://eregistry.difccourts.ae/), "Forms" on the top left corner, then "Court of First Instance and Generic Forms" and then "Claim Form". Most claims are Part 7 claims in which case, when the Claim Form is completed the Type of Claim should be P7. A claim would be deemed Part 8 where the claimant seeks a decision on a question that is required by the Court that is unlikely to involve a major dispute of fact or where there is a rule or practice direction which requires the use of a Part 8 Claim Form. When populating the form, under Type of Claim, P8 should be selected. The claim form should state the question that the claimant wants the court to decide on the remedy they are seeking.
17. What are the court fees for filing a claim?
In order to file an SCT claim, the filing fee is two percent (2%) of the claim amount, or USD 100, whichever amount is greater. If you are unable to afford this filing fee, you can seek a waiver from the DIFC Courts Registry but you will have to demonstrate that you do not have the means to pay the fee.
The filing fees for Part 7 or Part 8 claims are five percent (5%) of the value of the claim with a minimum of USD 1,500 and a maximum of USD 130,000. Where the claim is for both money and other relief, only the higher applicable fee is payable.
18. What are the thresholds for bringing a claim within the SCT?
To bring an employment claim within the SCT, the claim amount is for a maximum of AED 500,000. However, in employment cases only, if both parties agree to keep a claim within the SCT, the limit can be increased to AED 1,000,000.
19. What are the advantages of bringing a claim within the SCT?
The SCT has many advantages:
20. How quickly can I obtain a judgment in the SCT?
The process within the SCT is fairly prompt. From the filing of your initial claim, a conciliatory hearing can take place within a two (2) week period. If no resolution is reached, then the process can take a further four (4) to six (6) weeks. Judgment would normally be received within three (3) months of initiating the proceedings.
21. What rights does the CFI give to an employee?
All matters are public so there is no confidentiality in terms of the parties. This is usually something companies do not like as it is a reputational risk for them. Moreover, whilst the costs of initiating proceedings in the CFI can be expensive (Court filing fee along with legal costs), if the employee wins the case, the employer would normally be required to pay the employee's legal costs.
22. What language do the DIFC Courts operate in?
The words ‘pro bono’ are Latin: they mean ‘for the public benefit.’
In 2009, the DIFC Courts were applauded by the region’s legal community for implementing the first Pro Bono Programme of free legal advice in the Middle East, which was in turn derived from a need in the community for pro bono legal representation. This initiative allows individuals who cannot afford a lawyer the ability to seek free advice and representation from volunteer lawyers and is headed by the Pro Bono Programme Leader, Hayley Norton. The Programme is a public expression of the DIFC Courts’ mission to provide swift, transparent and accessible justice to DIFC Court users and to ensure that all parties are on equal footing in proceedings before the Courts, which is supported by the DIFC Courts.
A successful applicant may use a full range of legal services, from basic advice to full case management and representation in proceedings. Individuals who meet the eligibility criteria (explained below) will have their case details sent to all the volunteer firms.
Legal advice offered by volunteer practitioners will focus on issues that fall, or might fall, within the DIFC Courts’ jurisdiction. Legal assistance will not be provided on matters which are criminal in nature or governed by personal laws, such as family or inheritance laws, as well as those originating from organisations or transactions outside the DIFC Courts’ jurisdiction.
The DIFC Courts Pro Bono Programme (“Pro Bono Programme or Programme”) is only applicable to the Small Claims Tribunal and the Court of First Instance. If the case is to progress into the Court of Appeal or an additional claim is to be lodged, both the pro bono litigant and the volunteer practitioner agree to continue the representation into the appeal or additional claim.
Pro Bono Clinic
Periodically throughout the year, the Programme can be accessed through a Pro Bono (free legal advice) Clinic outreach initiative. Clinics are held bi-weekly on Thursdays in the DIFC Courts Office. They offer potential pro bono litigants one-to-one quality time, in confidence, with a registered pro bono volunteer practitioner who is always legally qualified and is often a specialist in-house legal counsel. He/she can advise the potential litigant on possible case scenarios and offer a course of action – or can provide the pro bono litigant with a wide range of options for further consideration. No appointments are necessary for the Pro Bono Clinics, which operate on a walk-in, first-come, first-served basis.
The Pro Bono Programme is a scheme set up for those who cannot afford legal representation. The main criterion, therefore, is the financial need for legal representation based on the inability to afford it. The merits of the case – that is, whether the case has a reasonable chance of success if it goes to trial – are also taken into consideration.
Law firms and individual practitioners wishing to participate in the Pro Bono Programme should be registered and in good standing under Part I or Part II of the DIFC Courts’ Register of Legal Practitioners. Each firm or individual practitoners should complete a registration form (which can be found here) law firms should include the contact details of the firm’s liaison associate for pro bono matters. This should then be submitted to the Programme Leader (email@example.com).
The above information and FAQ’s are provided free of charge as a community service by the Pro Bono Programme and drafted by our registered volunteer lawyers. Such information/FAQ’s provided as a service is of a general nature, and is not specifically provided for the purpose if, or use in, any court case. The information/FAQ’s are given as a matter of general guidance and by way of broad pointers only. It is not intended to replace, supplement or do away with the need for professional legal advice and/or legal action.
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