Workplace Health & SafetyLegal Considerations for Risk and Safety Professionals

Will Cadwaladr, Associate

Samantha Ellaby, Senior Associate

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1. Knowing the law

2. Liability – Who could be responsible?

3. Reacting to a workplace incident

4. Practicalities of Police / Public Prosecutor investigation(s)

5. Reducing workplace injuries / fatalities

Workplace Health & Safety

2

Knowing the Law : HSE Obligations

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Employers : UAE Labour Law

Section 5relates to Safety, Protection,

Health and Social Care of

Workers

Includes:

– Provide employees with adequate means of

protection against potential workplace hazards

– Display health and safety instructions in a prominent

place (in Arabic and others languages that the workers

understand)

– First aid box (one per 100 hundred workers) – use

entrusted to first aider

– Provide clean and well ventilated work place with

lighting, drinking water and toilets

– Inform employees of risks associated with work

– Specific obligations for employers at risk of contracting

occupational diseases (e.g. regular check ups)

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Employers : Reporting Obligations (Art 142)

• Arise where employee sustains occupational disease

or injury set out in schedule to Labour Law

• Duty to immediately report to police and MHRE

• Notification should include:

o Details of employee

o Synopsis of incident

o Medical aid or treatment provided

• May have other reporting obligations outside of

Labour Law (to regulatory body, for example)

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Employers : Financial Implications

1. Pay for medical treatment (Article 144)

▪ Includes transport expenses

▪ Only relates to treatment in a local medical centre

▪ Continues until the employee recovers or disability is established.

2. Pay the employee’s salary (Article 145)

▪ Where the employee is unable to work

▪ Full pay for six months or the period of treatment, whichever is shorter

▪ Half pay for a further six months, or until the employee recovers, disability is

established, or the employee dies, whichever occurs first.

3. Compensation (Article 150)

▪ In the case of death or permanent disability

▪ Capped at 24 months’ basic salary at time of death (min = AED18,000 to max =

AED35,000)

▪ Schedules to Labour Law prescribe % of maximum based on severity of disability

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Liability : Who could be responsible?

Multiple types of liability likely to arise in a single case / workplace incident.

Liability may fall to employer of injured / deceased, other companies such as the

main contractor or against individuals within the company.

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Contract

It is not possible to contract out of liability for Workplace Health and Safety in the UAE.

BUT – can enhance statutory minimum position.

If an employment contract contains a more favourable compensation mechanism than

the statutory compensation levels, the contractual position prevails (Cassation No.

607/1997).

Check contracts for contractual obligations relating to health and safety, and insurance

policies.

Potential for breach of contract claim where obligations not met.

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Civil Liability - UAE Civil Code

A person who causes harm to another can be subject to civil liability whether or not

criminal liability is found.

For example:

▪ Article 282 – general obligation to “make good the harm”

▪ Article 313 – vicarious liability of employers for acts of employees in the course

of employment

▪ Article 316 – relates to liability for harm suffered as a result of things or

equipment under his control

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• Employers required to ensure health and safety of employees at

work

• Principal legislation:

- Penal Code (Federal Law 3 of 1987)

- Labour Law (Federal Law 8 of 1980)

- Protection of Workers from Hazardous Works (Ministerial Decision 4/1 of 1981)

- Working in Remote Areas (Ministerial Decision 27/1 of 1981)

- Employee Penalty Guidelines (Ministerial Decision 28/1 of 1981)

- Prevention of Hazards at Work (Ministerial Decision 32 of 1982)

- Standards of Medical Case (Ministerial Decision 37/2 of 1982)

Breach of this duty, leading to death or injury, can give rise to both

financial and criminal penalties

However, personal criminal liability for injuries / fatalities in the

workplace

Criminal Liability

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Article 342 – Death:

“Shall be punishable…any individual who, by his fault, causes the death of

another person. The punishment shall be…if the crime was committed as a

result of the offenders failure to perform the duties imposed on him by the

principles of his function, profession or craft, or if the offender was…in a

state of drunkenness or narcotisation, or if he refrained, at that moment, from

helping the victim or asking for the victims help in spite of the fact that he

was capable of doing so…”

• Punishment is:

- a fine (no amount specified); and

- imprisonment for a minimum of 1 year if 1 person dies (3-7 years if

more than 3 deaths occur); and

- Diya (blood money) also payable – AED200,000

Criminal Liability : UAE Penal Code

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Article 343 - Injury:

“Shall be punishable…any individual who, by his fault, causes injury to the

physical integrity of another person. The punishment shall be…if the crime

was committed as a result of the offenders failure to perform the duties

imposed on him by the principles of his function, profession, craft, or if the

offender was…in a state of drunkenness or narcotisation, or if he refrained,

at that moment, from helping the victim or asking for the victims help in spite

of the fact that he was capable of doing so…”

• Punishment is:

- a fine not exceeding AED10,000; and

- imprisonment not exceeding 1 year; or

- if the individual is permanently disabled, imprisonment not exceeding

2 years

• Arsh is also payable – % of Diya (AED200,000)

Criminal Liability : UAE Penal Code

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• Whenever an incident / fatality occurs in a workplace or site, which results

in either :

Major Injury – medical treatment is administered to an

employee either onsite or at hospital; or

Fatality

The Police must always be notified;

If major injury or fatality, notify Dubai Municipality;

If Explosion, structure collapse or breakdown of any machinery

that could endanger lives, notify Dubai Municipality and Civil

Defence.

There is no codified process for how an investigation will proceed. It will

depend on the nature of the incident.

Reacting to a workplace incident / fatality

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Criminal Proceedings : Police Investigation

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Criminal Proceedings : Public Prosecutor

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Criminal Proceedings : Court

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• Trigger internal reporting and investigation procedures

• Implement document protocols and early risk measures

• Prepare internal accident report

• Carry out targeted root-cause analysis

• Submit approved form to Specialised Department at Dubai Municipality

within 72 hours

• Inform Specialised Department of outcome of Police and other authorities’

investigations

• Assess and confirm insurance cover

Criminal Proceedings: Internal Considerations

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• Consider who will remain on site / speak to authorities –training is key

• Anyone who speaks to or is formally interviewed by the Police, Public

Prosecutor or authorities should:

- Only relay first hand information

- Beware of over sharing

- Say “I don’t know” if you don’t know

- Beware of inadvertently admitting responsibility

- Request translator / attendance by Arabic speaker

- Carefully consider which documentation is handed over

- Take unified approach

• Remember – concepts of “legal privilege” and “without prejudice” are not

recognised in the UAE

Criminal Proceedings: Practical Considerations

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• Ensure your company has written procedures for what to do in the event of an

incident on site / in labour accommodation

• Train management and employees on what to expect when a workplace incident

occurs

• Provide training to staff on HSE procedures in their language – keep documentary

records

• Nominate certain manages to act as primary points of contact during an

investigation – ensure those persons are sufficiently trained

• Keep employee records up to date so that standard documents (i.e. passport, visa,

next of kin details) are readily accessible

• Have details of relevant embassies to hand in case repatriation of bodies is

required

• Know the law!

What can you do to prepare for the worst?

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