Clyde & Co MEA employment team successful in another discrimination and victimisation case in the DIFC Courts

Clyde & Co’s MEA employment team has successfully represented the defendant in Omar Ben Hallam v Natixis in the DIFC Court of First Instance, in which the claimant’s claims for wrongful termination, discrimination, victimisation and breach of contract were struck out.

The Court also awarded immediate judgment for the defendant in respect of the claimant’s claim for holiday pay. The judgment can be found here.

Ben Brown, Partner, and Lee Rogers, Senior Associate, of Clyde & Co, along with Patrick Tomison of Outer Template Chambers, represented the successful defendant, Natixis.

This is only the second time that the DIFC Court of First Instance has considered claims for discrimination and victimisation under the DIFC Employment Law No. 2 of 2019, as amended (the DIFC Employment Law) following the landmark decision in Shiraz Mahmood v Standard Chartered Bank DIFC CFI 044/2021. Clyde & Co’s MEA employment team also acted for the successful defendant in that case.

In this article, we highlight the key takeaways from the case. 

No concept of “wrongful termination” in the DIFC

The Court confirmed that the DIFC Employment Law does not recognise the concept of “wrongful termination.” Article 62 of the DIFC Employment Law establishes a statutory regime under which an employee’s employment may be terminated either with cause or without cause. Employers are permitted to lawfully terminate an employee’s employment without cause, provided the statutory notice (or longer contractual notice) requirements are satisfied and the reason for termination is not prohibited by the DIFC Employment Law or the DIFC’s whistleblowing regime. 

Reasons for dismissal

The Court reiterated that employers are not under any statutory obligation to justify or substantiate their reasons for dismissal without cause. 

Article 62 of the DIFC Employment Law permits termination of employment without cause, and provided the required notice is given, the employer is not obliged to elaborate any further (although it will often be sensible to do so). The Court expressly rejected the claimant’s argument that Article 62 imposed any obligation to provide reasons for termination or undertake any consultation prior to dismissal. 

Discrimination and victimisation 

The case highlighted the importance of pleading with precision when claiming discrimination and/or victimisation having careful regard to the statutory tests contained in Articles 59 and 60 of the DIFC Employment Law. 

The claimant failed to directly link any of the alleged discriminatory incidents to a protected characteristic for the purposes of Article 59 of the DIFC Employment Law. The Court also found that the claimant’s discrimination allegations were vague, unsupported, and in some instances unrelated to the claimant himself (i.e. for the purposes of the DIFC Employment, the alleged discriminatory act must be against the claimant themselves not a third party). 

In relation to the claimant’s victimisation claim, the claimant failed to identify any protected act or establish any causal link between the alleged detriment and a protected act, as required under Article 60 of the DIFC Employment Law. 

Holiday pay claim

The defendant succeeded in obtaining immediate judgment regarding the claimant’s claim for accrued but untaken annual leave. 

The Court confirmed that under the DIFC Employment Law an employer may require an employee to take outstanding annual leave during their garden leave provided at least seven days’ written notice is given by the employer to the employee. The claimant had received the requisite written notice and therefore the Court awarded immediate judgment on the basis that the claimant’s holiday claim had no real prospect of success. 

Takeaways

• There is no concept of wrongful dismissal in the DIFC
• Claims for discrimination and/or victimisation must be carefully pleaded
• Employers are entitled to require employees to take holiday during their notice period by giving 7 days’ written notice

Ben Brown, Partner in our MEA employment team, said: