Employment, Pensions & Immigration
The issue of harassment and the workplace culture surrounding it has been propelled to the forefront of most Human Resource departments' "to do" list in the past few years, indicating a cultural shift in expectations on behaviour both in and out of the workplace. The public campaigns such as #MeToo and #TimesUp have accelerated changing expectations across the globe and workplaces in the UAE are not immune to this. However, given the potential criminal liability certain allegations can bring, se
It is at this basic level that companies need to first focus. How do you make sure that people raise issues when they happen? How can you ensure that issues are raised to the right people? There are two factors to focus on:
Managing the way in which complaints can be brought forward can assist smaller groups of employees in particular. In the absence of an avenue to raise a complaint, employee grievances can form part of the office conversation and a serious concern can be shared and known amongst employees before HR or management have an opportunity to do anything about it.
It is of course important to ensure that you have a policy which provides you with a framework for managing complaints. However, in addition to the basic framework, you will need to consider additional, more nuanced questions, such as:
The answers to these questions will vary from case to case. However, it is important to reach a swift decision on these matters, particularly where the facts surrounding the complaint are known within the organisation amongst the general workforce; not only do both parties need to feel supported, but it is important that the company demonstrates its willingness to react promptly and appropriately before its audience of employees.
It is necessary to carry out a full, unbiased and open minded investigation into the facts. Additional factors, such as the potential for a criminal complaint, need to be taken into account. The key therefore to this phase is to conduct a fair and thorough investigation, but also to ensure that the Company protects its own position.
The investigation should be undertaken by someone who is (and is seen to be) impartial. For large organisations, it should be possible to find an impartial and independent individual within the organisation itself. However, in smaller firms, or where the allegations are particularly serious, it may be appropriate to bring in someone independent from outside of the company, such as an external law firm.
Ideally, the investigation will consider tangible evidence such as emails or records of discussions. However, in many instances, the complaint may arise from a private or historical conversation. In those instances, you will need to consider what witness evidence is available, and how much witness evidence is appropriate (you don't want to involve the whole office!).
Assuming that the investigation has found evidence from which concerns remain, the next step should be a formal disciplinary meeting, in order to establish whether to take disciplinary action and, if so, the appropriate level of that sanction.
Under UAE Law No. 8 of 1980, as amended (the 'Labour Law'), a disciplinary sanction can range from a warning or fine, through to dismissal with or without notice. However, a disciplinary sanction may not be imposed without the employer first undertaking a disciplinary process. Under the Labour Law, this involves inviting the employee to a disciplinary meeting in writing, discussing the company concerns at the meeting and giving the employee an opportunity to comment, before adjourning the meeting and investigating any explanation put forward by the employee at the meeting. Following the investigation, the employer may then determine the appropriate sanction to impose (if any) and confirm this to the employee in writing. The entire process should be documented and put on the employee's personnel file. If a company has a disciplinary process which expands upon the statutory minimum outlined here, this should be followed.
The severity of the sanction will depend upon the seriousness of the act.
It is also necessary to consider whether the police should be informed by the company, or indeed whether the complainant has already contacted the police about the complaint. Relevant to this is whether the harassment complained of relates to a woman or to a protected religion, both of which carry criminal liability.
Regardless of the outcome of the investigation and disciplinary process, it is important for all parties to handle matters of confidentiality in a sensitive manner, both within the organisation and externally in the face of potential press coverage.
While settlement agreements have historically played a key part, particularly where confidentiality is to be maintained, in the current climate, a restriction on speaking out may not be appropriate. For example, if the agreement became publicly known, would it look as though the complainant was being silenced or the perpetrator paid off? Any agreement cannot, of course, prevent someone from raising matter with the police in any event if they believe a crime has been committed.
In the light of the problems faced by organisations in dealing with complaints of this type, it is preferable to take proactive steps now, rather than wait for a complaint to arise. For example:
Given the cultural shift in behaviour globally, awareness of rights, and thus complaints of harassment, are on the rise and employers should act proactively to ensure that they don't become tomorrow's news.
If you have any concerns regarding the issues raised in this article, please contact Rebecca Ford or your usual contact from the Clyde & Co Employment Team.