Top workplace issues
The Kingdom of Saudi Arabia introduces new work visa
Providing a consistent, quality experience for students, and avoiding disruption within the academic year are key for educational establishments. Having certainty that staff will remain employed for full-academic terms, and understanding the longer-term intentions of staff, particularly senior personnel, is therefore crucial. In this article we look at some practical steps to address this, in the context of local law.
Investing time in the recruitment process is an effective, practical way to ensure that the right staff are selected. There are generally no restrictions in the region regarding advertising or background checking, save for in the Kingdom of Saudi Arabia (KSA) specifically, in which establishments must ensure that roles are advertised on Taqat and where background checking may be difficult to undertake. Across the region, medical tests (and fingerprints) are typically required as part of the immigration process for expatriate employes entering the jurisdiction. Due diligence at the earliest stage possible will therefore help to focus time and resources on the right candidates.
The key is to focus on the requirements for the role, without making assumptions about who may / may not be able to fill such requirements. Where there is a genuine requirement for an applicant with a particular characteristic, the rationale for this should be clearly stated. In the context of international recruitment, it is important to be aware of non-discrimination and nationalisation laws in countries from which an establishment is recruiting. In KSA, for example, a certain percentage of specified educational roles will need to be occupied by KSA nationals, and the KSA Labour Law protects “citizens” from discrimination on the basis of gender, disability, age or any other form. The reference to citizens implies that the discrimination provisions protect KSA nationals only (and potentially other individuals who in practice are treated in the same way such as GCC nationals or the male spouse and children of a KSA national woman).
The interview process is a good opportunity for exploring an individual’s plans and aspirations, whilst presenting the culture and ethos of the establishment, to determine if an individual is the right fit for the establishment and life in the jurisdiction.
It is likely that candidates based abroad will have various questions about the jurisdiction and a candidate’s suitability for working in the jurisdiction. Such questions will likely involve delicate issues which will need to be handled carefully and realistically.
Interviewers should be prepared to be able to respond to any immigration related questions, such as an individual’s ability to bring their dependants to the country and the relevant process. The immigration process for sponsoring an individual to work and reside in the region involves submission of extensive personal information. Due to immigration processes, it is common to ask an individual during the recruitment process if they are married or single and their age.
Whilst it is important to answer any questions regarding the culture in the region and explore information about the individual during recruitment for the purpose of the role and associated immigration requirements, institutions should also be careful to ensure that personal questions to the individual are approached sensitively and also always bearing in mind that where the individual is based, there may be more extensive legalities in relation to discrimination and what is likely to be considered as an acceptable question to ask during an interview. Questions, therefore, relating to matters such as family responsibilities, race and health should be navigated carefully and only asked if they are directly relevant to the role and/or immigration requirements.
Offers of employment and employment contracts are often provided much earlier than an individual is due to start work in the education sector, in light of the need to plan for future academic years and given that employees may be recruited from out of country, or within country but they need to transfer their employment (and therefore immigration status) from another employer. Establishments should therefore think carefully about the conditions to be employed that are important to the establishment; looking at what conditions would be ‘deal-breakers’ if they are not met (i.e. if an individual is unsuccessful in gaining immigration clearance to work in the country in which they are required to work). Any conditions must be made clear in any offer letter or employment contract. If a condition is then not met, this will enable an establishment to revoke the offer sooner rather than later, as cost efficiently as possible.
Given the lead in time from job offers to individuals starting employment, it is also important to stay in touch with new recruits, being available for any questions they may have. Support should be provided in relation to the immigration process, particularly if employees have family members whom they intend to sponsor.
Fixed term or definite contracts are commonplace in the global education sector, given the need for continuity throughout the academic year. In fact, in KSA, all expatriates must be engaged on fixed term contracts and more recently, in the United Arab Emirates (UAE), all employees, regardless of nationality, must be engaged on fixed term contracts.
The terms of such contracts should be carefully considered in the context of local law.
For example, in the UAE, a fixed term contract may be terminated on notice (of between 30 and 90 days) by either party at any time. This is, of course, problematic for education establishments, particularly for teaching staff, and we have worked with a number of clients to devise practical measures to mitigate this issue (for example, looking at how benefits are structured and considering the terms of automatic renewal clauses).
By contrast, in KSA, there is no ability to terminate a fixed term contract prior to its expiry date save in very limited circumstances prescribed under the Labour Law. Where a fixed term contract is terminated prior to its expiry date (outside of the circumstances permitted under the Labour Law), the terminating party must compensate the other party for the remainder of the contractual term. Such compensation can however be capped, by contractual agreement, at two months’ pay. Typically, contractually agreeing a cap on compensation is in an employers’ interests but education institutions must consider whether limiting the compensation in this way might make it more attractive for an employee to resign during the term.
In Qatar, if an employer seeks to terminate an employee's employment earlier than the expiry of the fixed-term, and the employee does not agree to the same, the employer may be required to pay the employee their wage and other benefits in full for the remainder of the unexpired term, unless a notice period is included in the contract. It is therefore vital to ensure that contractual terms regarding the contract length, notice and ability to terminate are clear, and employee expectations are properly managed.
In all jurisdictions, the duration of the contract, the terms of any automatic renewal clause, the applicable notice period (where relevant) and the consequences of terminating during the term should be carefully considered and documented.
Benefits and incentives being linked to honouring contractual terms regarding notice can be an effective way of promoting a consistent workforce and lessening the risk of mid-term upheaval. Annual benefits, such as return flights, could be subject to an employee completing the academic year, before they are granted, and may be lost if an employee leaves employment beforehand. Again, the key to this will be making such terms clear in contracts and policies and managing expectations.
Including wording in employment contracts reminding employees of the implications of resigning during the academic year under local law can be helpful. For example, in addition to early termination compensation discussed above, in KSA, an employee resigning from their employment could have their end of service gratuity reduced depending on the circumstances and their length of service.
Establishments could consider including clauses in the contracts of senior leadership staff, in, particular, setting out a sum that an employee may need to pay if they breach any contractual term to remain in employment until the end of an academic term. Such clauses must be used with caution, must reasonably reflect the damage caused by the breach of notice and should be considered carefully in the circumstances of any given case.
Post termination restrictions can be a useful tool for retaining talent if used correctly. Each jurisdiction has its own laws and practice relating to post termination restrictions which need to be considered. However, in general, non-compete provisions must be no wider than necessary to protect a company’s legitimate business interests and must be limited by scope, duration and geography. The terms of post termination restrictions therefore need to be considered, ideally on a case by case basis, to assess their scope in light of the role that the employee performs.
The practical enforcement of post termination restrictions in the region can however be problematic given, generally speaking, injunctions are not granted in these circumstances. It is therefore typically necessary to file a claim for damages, for which there needs to be evidence of losses suffered as a result of the employee’s breach, which is often difficult to obtain. Nevertheless, post termination restrictions can serve as a useful deterrent and should be considered in the context of local law and practice.
Attracting and retaining teaching talent is always a challenge. Aside from having fixed term contracts and longer notice periods (where permitted by law) the culture of the establishment and whether staff feel valued are eminent.
Our team of regional education and employment specialists will be pleased to assist with any queries you may have in relation to the issues raised in this article. Please contact one of the authors below.