On 29 July 2018, the UAE Cabinet passed a Cabinet Resolution No. 43 of 2018 regarding supporting special needs individuals (people with determination) in the workplace. The resolution aims to assist people with determination to access equal opportunities in the labour market, and sets out a framework to ensure their access by setting out the responsibilities of employers and what it refers to as 'concerned authorities' in this regard.
The Resolution's Aims
A person with determination is defined as 'any person with permanent or temporary disability or deficiency totally or partially in his/ her physical, sensory, mental, communicative, educational or psychological abilities to the extent that it reduces the possibility of meeting his/ her normal requirements in comparison of the circumstances of their peers who are non-disabled persons.'
Discrimination is defined as 'any distinction, exclusion or restriction based on disability which aims to or resulting in weakening, impairing or nullifying the equal recognition, enjoyment or exercise of any of the rights granted under the legislation in force in the State.'
Concerned Authorities are defined as 'Governmental authorities, including federal and local ones, private sector organizations and facilities, including foreign institutions that operate in the country or their branches, associations, charities, clubs and profitable and non-profitable organizations.'
In seeking to support people with determination and eliminate discrimination against them, the Resolution sets out the following aims:
- Equal employment opportunities;
- Non-discrimination against them in any work stages or benefits; and
- Equal salaries to their peers engaged in the same role.
Concerned authorities are put under a special obligation to ensure these aims are achieved.
Obligations on Concerned Authorities
The definition of concerned authorities would include employers in the private sector who under the Resolution are obliged to:
- Adopt procedures or mechanisms for attracting people with determination into their organisation, i.e. adopt recruitment procedures which take into account the needs of people with determination (e.g. adjusting recruitment processes such as interviews and vocational tests, advertising in different mediums, only stipulating core competencies required for the role in the advertisement or job description);
- Provide them with access to information on job vacancies, ways to apply and the recruitment process in general;
- Provide equal treatment with that received by their peers;
- Not discriminate against them with respect to the work benefits or the employment process or stages of employment, which could include recruitment, retention and promotion; and
- Ensure they have safe and healthy working conditions by ensuring the work place is free of any abuse or harassment; that they have reasonable accommodation, and are provided with appropriate rehabilitation and training.
A Duty to make Adjustments
Significantly, there is a strong duty under the Resolution to make adjustments to the work environment in order to accommodate people with determination. Employers are under a duty to consider adjustments in the following areas:
- Work environment (e.g. adjusting physical spaces and providing equipment or training);
- Work organisation and flexibility e.g. considering flexible working;
- Performance Assessment and Management; and
- Career development and learning opportunities.
Restrictions on Termination of Employment
Employers are also restricted in their ability to terminate employment due to an employee's disability as an employee with determination cannot be asked to retire unless he has reached retirement age or he is no longer able to work and this is established by a medical committee.
Employers are able to manage the performance of an employee with determination and are under a duty to assist the employee meet the performance standards expected of their role. This can be interpreted as a duty to make adjustments to assist the employee achieve the same standards as other employees.
The Ministry of Human Resources and Emiratisation are under a duty to consider the following when assessing an employer's compliance with its obligations under the Resolution:
- Size and resources of the employer;
- Nature and circumstances of work environment;
- Type, nature and degree of disability; and
- Non-placement of additional burdens without sufficient justification.
Any other standards and controls that ensure a balance between the rights of persons of determination and the employer.
The Resolution represents a significant development in the UAE legislative framework promoting equal opportunities for minority or disadvantaged groups. The Resolution sits alongside other initiatives such as the UAE Gender Council and establishes a policy desire to ensure a fair and competitive labour market.
We have produced a practical guide on an employer's duty with regard to disabled employees which is available on request from the authors or your usual Clyde & Co contact.