Ask the expert: Rules and rights for mums-to-be
The issue of maternity leave and the rights of pregnant women is always of significant importance to parents and those intending to start a family, as illustrated by the letter in 7DAYS last week from the woman who said her boss told her not to get pregnant for five years.
International Labour Standards, issued by the International Labour Organisation (ILO), note that “expectant and nursing mothers require special protection to prevent harm to their or their infants’ health, and they need adequate time to give birth, to recover and to nurse their children.”
Ensuring that there is proper legal protection for working women and safeguarding their health is considered by the ILO to be a precondition for achieving genuine equality of opportunity and treatment for men and women at work and enabling workers to raise families in conditions of security.”
Maternity right, along with most employment rights within the UAE are governed by the UAE Labour Law.
The Labour Law provides that women are entitled to 45 days maternity leave with full pay if they have been employed for more than one year, and with half-pay if the period of employment is less than a year. Upon the expiry of the 45-day period, the employee is required to return to work.
An employee may be granted leave without pay for up to 100 days if the absence from work is due to illness resulting from pregnancy or delivery and is evidenced by a medical certificate. Once an employee has returned to work, the Labour Law provides that two half-an-hour nursing breaks must be granted each day, without any reduction of pay.
Although there is a limited right to 45 days of maternity leave under UAE law, as in most areas of employment law, the Labour Law provides the minimum obligations and an employer is, of course, free to offer a longer period of paid or unpaid at their discretion.
Employees fare better under the Dubai International Financial Centre (DIFC) Employment Law, where they are entitled to a minimum of 65 days maternity leave with full pay for the first 33 days and half-pay for the further 32 days.
However, to be entitled to such pay, an employee must satisfy additional criteria such as having been employed for at least 12 months preceding the eighth week before the expected week of childbirth and the provision of a medical practitioner’s certificate stating the expected or actual birth date, if requested by their employer.
Additionally, the maternity rights granted under DIFC Employment Law apply also to female employees adopting a child.
RIGHT TO WORK
Many employees are, however, concerned by the prospect that their employer may wish to avoid the issue of maternity leave altogether. There is a common acceptance among many people that female employees within the UAE have little protection against being dismissed by their employer due to their pregnancy and/or maternity leave rights.
It should be noted that under the Labour Law, an employee’s contract may only be terminated without notice in a limited number of specific circumstances (as detailed in Article 120) and pregnancy is not included.
It may, though, be simple for an employer to cite any reason other than pregnancy, such as financial constraints or poor performance, when dismissing a pregnant woman. Whereas the DIFC Employment Law provides specific protection from termination (or a change in employment terms) due to an employee’s pregnancy or maternity leave, there is no such statutory protection elsewhere within the UAE.
So what can an employee do if she feels she has been arbitrarily dismissed due to her pregnancy or recent childbirth?
Although her options are limited, she could raise a complaint of wrongful dismissal – as could any employee that has been dismissed unfairly and bring a claim for arbitrary dismissal compensation.
She would, of course, be required to prove that the termination of her employment was arbitrary. If the matter is not settled to the employee’s satisfaction, she may then file a complaint with the Ministry of Labour.
Please contact one of our experienced lawyers today for more details on UAE employment and labour law. Email us at firstname.lastname@example.org or call +971 4 448 4284.