In the wake of the global economic crisis, many employers are reviewing and strengthening their policies in relation to background checks performed on prospective employees during the recruitment process. When performing background checks on a prospective employee, or in establishing a related policy, there are various legal obligations and considerations which an employer must bear in mind, the most important of which are addressed in this article.

Reference checking

The UAE Labour Law places an obligation on employers in the UAE, on the termination of employment, to provide a certificate to an employee (but not to a third party) setting out certain prescribed information, where the employee requests the employer to do so. The information which must be contained in the certificate includes (i) the period of the employment, (ii) the nature of the work performed by the employee during the employment and (iii) details of the employee's remuneration package. It is open to the employee to request such a certificate from his or her ex-employer and provide it to the prospective employer.

Whilst a prospective employer may seek to obtain information regarding an individual from that individual's previous or current employer directly, the latter is, in most cases, under no statutory obligation in the UAE to provide the requested information and may, for a variety of reasons, be unwilling to do so. For example, an employer may decline to provide information relating to an individual where it considers that to do otherwise might result in a breach of its obligations, whether statutory or contractual, to keep certain information confidential.

It is common practice, internationally, for an employer to require a prospective employee to supply contact details for at least two referees who may be contacted and asked to provide a reference. However, it is becoming increasingly common in many jurisdictions for references to include limited factual details only without including more personal information relating to the individual, such as details of remuneration or any comments on the individual's character or performance. Any reference should include an appropriate disclaimer in order to reduce the possible risk of liability on the part of the referee.

Other types of checks

An employer should make background checks in relation to a prospective employee prior to his employment in order to verify his work experience and education. It is worth noting that following the offer and acceptance of employment, where the individual is neither a UAE national nor a national of a Gulf Co-operation Council member state, an employer will need to apply to sponsor the individual for work permit and residence visa purposes in order to work for the employer and live in the UAE. As part of this process, the employer will be required to submit copies of the individual's educational certificates which, generally, could have needed to have gone through a time consuming authentication and attestation process.

As part of the sponsorship process, an individual will also be required to undergo a medical examination screening for certain statutory prescribed diseases. Where an individual is found to be a carrier of such a disease, the application for a UAE work permit and residence visa will not succeed.

Where an individual has resided in the UAE for a certain period of time, a certificate of good conduct confirming that the individual does not have a criminal record in the UAE may be obtained in relation to that individual. A prospective employer could request the individual to obtain and submit to it such a certificate. Where the prospective employee is based outside the UAE, it may be possible to obtain a similar or equivalent document in another jurisdiction.

Depending on the industry in which an employer operates, it may consider it appropriate to perform other types of checks on a prospective employee. For example, an employer may wish to consider whether it can obtain information in relation to the individual's traffic violation history or require the individual to perform a drug and alcohol test.

Recruiting employees into particular roles attracts additional considerations. For example, an employer will need to obtain certain information in relation to an individual who is to be appointed to the board of a company in the UAE in order to satisfy itself of compliance with the relevant provisions of the UAE Commercial Companies Law . In addition, an employer may wish to consider other types of background checks where an individual is being recruited into a finance-related or senior position within the business.

Confidentiality

It is important that employers understand their statutory confidentiality obligations when providing a reference or information in relation to a current or past employee or obtaining information in relation to a prospective employee. Breaches of the applicable laws can have serious implications for an employer (and/or its officers) and can result in criminal penalties, including imprisonment.

Employers (whether past, current or prospective) in the UAE fall within the scope of the general duty under the UAE Penal Code prohibiting the disclosure of confidential information relating to an individual. This seems to place restrictions on the nature of the information an employer can provide to a third party or prospective employer in relation to a current or past employee. A prospective employer must also take care to ensure it does not breach this prohibition in relation to any information it obtains about a prospective employee. An individual may provide a specific written waiver to the employer, allowing the latter to provide the relevant information to a third party.

In addition to the above, there is a wide body of law in the UAE which restricts, and in some cases prohibits, the divulgence or publication of electronic information, records, correspondence or other forms of electronic documentation which employers will need to consider with respect to information obtained by electronic means in relation to individuals.

Obtaining references and performing other background checks on a prospective employee can be important aspects of the recruitment process. An employer should take care when requested to provide information about a past or current employee, or when it obtains information about a prospective employee, to ensure that it does not breach any statutory or contractual obligations placed on it in relation to such information.

Footnotes

1 UAE Law No. 8 of 1980, as amended.

2 UAE Law No. 8 of 1984, as amended.

3 UAE Law No. 3 of 1987, as amended.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.