‘Can an employer hold an employee's passport?’

It is against the law for companies to retain an employee's passport without their agreement

It is against the law for employers to retain an employees passport without their permission. Pawan Singh / The National

We are in the process of hiring a live-in nanny/house maid who is currently employed by a cleaning company. Her contract expires in January 2021 and we plan to transfer her visa to our sponsorship.

We have been told that her employer has been holding her passport for the past five years and they usually threaten to send the employees back to their home countries if they want to find another job. What can be done in this situation? TE, Abu Dhabi

The first issue here is regarding the passport. No employer is permitted to retain an employee’s passport without their permission. The UAE government has made its position regarding the retention of employee passports very clear and the legal department of the Ministry of Human Resources and Emiratisation (MoHRE) has advised that “retaining workers’ passports amounts to forcible work in violation of the International Labour Organisation Convention on the Abolition of Forced Labour, to which the UAE is a signatory”. Passports should only be held by an employer for a limited period when arranging, renewing or cancelling visas.

The second issue is the employer threatening to send an employee home if they want to work elsewhere. This is unfair and restrictive and is not how any employer should operate. No employer should prevent an employee from moving on and they certainly shouldn’t do so by means of threats. TE’s future employee should advise her current employer that she does not wish to continue working for them when the contract expires and that she wants her visa to be cancelled at that time.

The woman will have a 30-day grace period, during which she can legally remain in the UAE after visa cancellation. It may be useful for TE to notify the employer that he plans to take her on as a domestic employee and will be organising a visa as soon as possible. If the cleaning company continues to be obstructive, a case can be made against them with the MoHRE.

I have been working on an unlimited contract for a limited liability company for the past 15 years. Due to restructuring, I was terminated in June and completed my notice period in July. I have not been paid my end-of-service gratuity even though my visa was cancelled on October 2.

In September, we heard that the company was going into liquidation and would pay people who were terminated up to October, with no mention of those terminated earlier.

Am I entitled for the full end-of-service benefits as per UAE law or is there a different calculation if a company is liquidated? As I did not get my gratuity, should I take legal action? Would it be a long procedure? Is it necessary to appoint a legal representative or can I get any free legal assistance for the proceedings? PD, Dubai

The legal situation can be a little different if an employer files for liquidation, so I referred your query to Danielle O’Brien, an associate at Horizons & Co law firm. She said: “I understand that your ex-employer has not yet filed for liquidation. Accordingly, you are due for full end-of-service benefits. Should your former employer file for liquidation, they are still legally obliged to settle labour matters as a matter of priority.

“If you have not received your gratuity, but have cancelled your visa, you can still pursue your rights before the Ministry of Human Resources and Emiratisation, but it will be significantly more complicated and chances of a successful outcome are greatly diminished. That said, if you have not cancelled your visa, it is likely that the MoHRE will be able to assist in reaching a swift and amicable settlement.”

This column regularly advises people not to sign documentation to cancel visas before all payment due to the individual has been paid as this weakens a case.

Ms O’Brien added: “Legally, you do not need a lawyer to represent you before the MoHRE or UAE onshore courts. However, it is recommended as all submissions made to the courts are in Arabic. Furthermore, as mentioned, if you have cancelled your visa without receiving your entitlements, the matter will be complicated, and it is recommended that you have legal counsel.”

Keren Bobker is an independent financial adviser and senior partner with Holborn Assets in Dubai, with more than 25 years’ experience. Contact her at [e-mail]. Follow her on Twitter at @FinancialUAE

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