April 19, 2023

Policy Pointers – Notice and Handover

Under Article 62 of the DIFC Law No. 2/2019 (“DIFC Employment Law”), an employer or an employee may terminate an employment at any time so long as the requisite notice has been provided to the other party. For employees with less than 3 months service, the written notice required is at least 7 days, for employees employed for less than 5 years, the written notice should be for at least 30 days or more, and if the period of the employees’ employment is over 5 years, the written notice shall not be for over 90 days, unless otherwise agreed in the employment contract. 

An employer may require an employee not to attend work or undertake their duties during all or part of the employee’s notice period. However, this must be communicated to the employee from the outset. In the event the employer introduces a change in the notice period policy whilst an employee is serving their notice period, the employee is subject to the policy change as the employee continues to be employed with the company at the time the policy change was introduced. This position has been taken by the DIFC Courts in Laia v Laredo Ltd wherein the Defendant introduced a memo to the employees, after the Claimant had submitted his notice of resignation, stating all employees are legally bound to comply with the 30 day notice period from the date of resignation, and sufficient handover of the works were carried out by the resigning employee. The employee was subject to follow the terms of this memo as although he was serving his notice period, he continued to be employed by the company.

It was also set out in this case that in the event an employee does not carry out his duties during the notice period, the employee is not entitled to receive their wages for the notice period. This was also set out in the case of Lalit V Leya DIFC 093/2021, wherein it was held that if the employee has not completed the tasks required by the employer during the notice period and the defendant has failed to complete them, the employee is not entitled to receive wages in lieu of notice. 

Our view is when introducing changes to the current terms of contract, employers are not permitted to unilaterally amend the terms of the contract. If they wish to make changes in the contract, the changes have to be presented with sufficient notice to the employees. Therefore, changing the notice policy before or after the employee has resigned can only be implemented if both parties agree on it. Employees should read and understand their rights under the DIFC Employment Law.

An employee is required to undergo a proper handover process regardless of the leaving circumstances. Handovers are a vital part of the onboarding and offboarding procedure in employment to ensure a smooth transition within the company. The handover should be detailed, structured and specific to the position. A suitable handover should include a description of the day-to-day activities, access to all the relevant documents and files, project status and deadlines, details of all login and password details, and housekeeping. Although an employee does not need the employer’s permission to leave the company, it is professional and expected that a suitable handover is undertaken.  

An effective handover of company property involves transferring ownership and control of physical assets, information and systems from one individual or group to another in an organized and efficient manner minimizing disruption to the company’s operations. This process should ensure that:

  • All necessary documentation is completed and signed to confirm the transfer of ownership.
  • All relevant information, including passwords, access codes, and operating procedures, is provided to the new owner.
  • Any necessary training is given to ensure that the new owner is able to effectively use and maintain the property.
  • All equipment and systems are thoroughly tested to confirm that they are in good working order.

In the event an employee fails to inform their employer about their exit, the employer may report them as absconding. However, as established in the case of Laia V Laredo Ltd DIFC 408/2022, an employer applying for an absconding claim should follow the proper procedure and sufficient reasons to do so must be provided. In the event proper procedure is not followed by the employer, the Courts may lift the absconding ban as occurred in this case. Employers may also discuss the employee’s performance and duties with the employee if the employee is not performing satisfactorily. 

By Sarah Malik and Saher Khan

This publication is not intended to offer legal advice and is solely for informational purposes.