Tackling employer discrimination when you're pregnant

dubai - The burden of proof is on the woman to show such discrimination

Last week, we started taking a look into maternity rights in the UAE. This week, we dwell further into what legal measures can be taken should one be a victim of discrimination due to maternity leave or pregnancy.

Some employers may try to find ways around the law by not stating pregnancy as a reason for terminating a woman's contract, often due to the high costs a pregnant employee could impose on their company. If a woman is subject to false dismissal in the workplace because she is pregnant or after returning from maternity leave, the burden of proof is on her to show such discrimination. She would have to bring a claim for arbitrary dismissal compensation and if the issue is not settled, then she may file a complaint with the Ministry of Labour.

An employer will rarely admit that an employee has been dismissed for being absent on maternity leave. There will be circumstances when a dismissal during maternity leave may be for fair reasons, such as gross misconduct or persistent poor performance. Except in the most serious cases of gross misconduct, the employer will be expected to have warned the employee and conducted a disciplinary hearing. However, if the dismissal or detrimental treatment is caused by maternity leave or for reasons connected to maternity leave, it is discriminatory.

Redundancy rights
In terms of redundancy during maternity leave, since there are no provisions addressing this issue in the UAE, theoretically, a pregnant woman, or a woman on maternity leave, is entitled to the same end of service remuneration as any other employee at her company. However, if the woman has already exhausted her 45 days of paid maternity leave, the employer may deduct the amount equivalent to the salary of the employee as a company expense. Although this is not legal, in practice, such incidents have occurred.

The burden of proof lies upon the employee to show that the employer has wrongfully ended an employment contract. As such, in almost every case, the employer will deny dismissing a woman purely because she is pregnant or that she is on maternity leave.

According to Article 10 of the Labour Act, there are 10 reasons an employer may dismiss an employee without notice:

1. If the employee adopts a false identity or nationality or by submitting forged documents or certificates;

2. If the employee is appointed under a probationary period and dismissal occurred during or at the end of the said period;

3. If the employee commits an error causing substantial material loss to the employer provided that the latter advises the labour department of the incident within 48 hours from having knowledge of the same;

4. If the employee violates instructions concerning safety of the place of business provided that such instructions are displayed in writing;

5. If the employee fails to perform her basic duties under the contract of employment and persists in violating them despite formal investigation and warnings;

6. If she divulges any secrets of the establishment where she is employed;

7. If a courts' judgment is awarded against her;

8. If during working hours, she is found intoxicated or under the influence of drugs;

9. If in the course of her work, she commits an assault on the employer, or any of the supervisors; or

10. If she absents herself without lawful excuse for more than 20 intermittent days or for more than seven consecutive days during one year.

In practice, most employers use reason number 5 for dismissal without notice. This is why it is very important to keep a record of all feedback, both positive and negative, from your employer so you can refer to them if necessary.

Keep a record
Although in most circumstances, it will be difficult to prove the direct correlation between dismissal and maternity leave or pregnancy, it is always good practice to keep record of your own performance. If you ever receive a warning or disciplinary hearing, make sure it is in writing, and that you have a detailed record of the cause. Similarly, if you are awarded or appraised for a project or the good work you have done, it is always advisable to keep written evidence. If you have a great track record, it will be much harder for an employer to show a valid reason for your dismissal.  

If you feel that you have been a victim of discrimination due to maternity leave or pregnancy, the first step is to seek legal advice. Direct confrontation with your employer may make it difficult to gather evidence in the future to prove the actual cause of dismissal.

- The writer is head of Iran desk at Fichte Legal Consultants. Views expressed are her own and do not reflect the newspaper's policy.