‘Can my employer sack me after maternity leave?’

There is a potential claim for unlawful termination if an employee can prove that the reason for termination was based on their time off during pregnancy

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I was sacked from my job during leave that was added to my maternity leave because I had post-natal anxiety.

The company claims that sacking me was down to a restructuring and change of job description. I sent a letter challenging the termination, claiming arbitrary dismissal as well as the potential breach of two employment laws.

In it, I demanded that they pay an additional two months’ salary and full sick pay entitlement as a form of compensation. My employer replied, saying they had every right to terminate my contract as I did not return to work at the end of my maternity leave.

There was a verbal agreement that I would resume work on January 31, after taking unpaid leave from January 17 to 30.

I was also pressured to work during my maternity leave and I have evidence of this. Can I make a claim against the company? JH, Dubai

While the new UAE Labour Law is very clear about dismissal while pregnant, in this situation, I asked for advice from Thenji Moyo, Dubai's legal director and head of employment for Gateley UK.

“An employer is not permitted to discriminate against an employee on the grounds of sex, pregnancy or maternity leave," she says.

"If the employee is able to prove that the real reason for her termination was based on her maternity leave, there is a potential claim for unlawful termination given that she has already filed a complaint seeking compensation.

“It would, however, be for the Labour Court to decide, based on evidence whether the termination was due to a genuine need to restructure or maternity leave.”

The UAE Labour Law, which came into effect on February 2, under Article 30 lists the rights and protection available for pregnant employees.

Article 30, Clause 8, says: “It is not permissible to terminate the service of the female worker or notify her of the same because of the pregnancy, having a maternity leave or her absence from work in accordance with the provisions of this Article.”

Meanwhile, Clause 6 says: “Being on a maternity leave or absent from work as mentioned in this Article shall not prejudice the female worker’s right to obtain the other leaves.”

This means that unpaid leave is an acceptable option if agreed to by both parties. This is covered in Article 33, which says: “The worker may, after obtaining the approval of the employer, have an unpaid leave, other than that referred to herein.”

I resigned from my job after working for a company for three years and three months. When I went to get my visa cancellation paper, the company made deductions from my salary and I was left with only Dh200.

My employer has also deducted “hiring fee” of Dh1,664 from my end-of-service settlement.

What can I do about this as I had made plans to use my final salary? JO, Abu Dhabi

I have written about this subject numerous times in previous columns.

Article 6 of the new Labour Law, which covers recruitment and employment of workers, says: “The employer is prohibited from charging the worker for the fees and costs of recruitment and employment or collecting them from him, whether directly or indirectly.”

This makes it clear that the deduction of a “hiring fee” is not permitted.

Quote
An employer is not permitted to discriminate against an employee on the grounds of sex, pregnancy or maternity leave
Keren Bobker, senior partner with Holborn Assets

In addition, the employer deducted sums for alleged damage to a vehicle and a camera, but these are well in excess of the amounts permitted by law.

Article 25 of the Labour Law, titled Cases of Deduction or Withhold from the Worker’s Wage, sets out what can and cannot be deducted from an employee’s salary.

"No amount may be deducted or withheld from the worker’s wage except in the following cases … Amounts deducted from the worker due to violations he commits, according to the regulation of penalties in force at the establishment and approved by the Ministry, provided that they shall not exceed 5 per cent of the wage," Clause 1 of Article 25 says.

“Amounts necessary to rectify the damage caused by the worker, as a result of his mistake or violation of the employer’s instructions, which led to the destruction, demolition or loss of tools, machines, products or materials owned by the employer, provided that the deducted amounts do not exceed the wage of (5) five days per month. It is not permissible to deduct an amount greater than that, except with the approval of the competent court,” it says.

The deductions in JO’s cancellation paper far exceed these figures, so he may immediately register a complaint with the Ministry of Human Resources and Emiratisation to request that he is paid what he is owed.

The toll free number is 800 60 or there is a chat facility on the Ministry’s website.

Keren Bobker is an independent financial adviser and senior partner with Holborn Assets in Dubai, with more than 25 years’ experience. Contact her at keren@holbornassets.com. Follow her on Twitter at @FinancialUAE

The advice provided in our columns does not constitute legal advice and is provided for information only

Updated: April 10, 2022, 5:00 AM
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