Managing Employee Absenteeism in the UAE: When Does Absence Become Grounds for Termination?

Absenteeism is one of the most common, and most mismanaged, sources of workplace friction in the UAE. Employers often assume persistent lateness or unexplained absence automatically justifies dismissal, while employees may underestimate how quickly repeated unauthorised absence can become a statutory ground for summary termination. Federal Decree-Law No. 33 of 2021 on the Regulation of Labour Relations (the “Labour Law”), together with its Executive Regulation under Cabinet Resolution No. 1 of 2022, sets out a precise, and narrower than commonly assumed, framework for when absence becomes a lawful basis for dismissal without notice.

 

The General Rule: Notice-Based Termination

 

Under Article 43, either party to an employment contract may terminate it for a legitimate reason, subject to a written notice period of 30 to 90 days, as agreed in the contract. Ordinary attendance issues — occasional lateness, isolated unexcused absences or attendance-related performance concerns — would generally be managed through this notice-based route, or through appropriate disciplinary measures under Articles 39 and 40, rather than immediate dismissal. Employers who terminate outside the statutory grounds for dismissal without notice may face disputes over notice pay and other employment entitlements.

 

Article 44: The Threshold for Summary Dismissal

 

The decisive provision is Article 44, which sets out the grounds on which an employer may dismiss a worker without notice and without paying notice-period compensation. Among those grounds, absenteeism is addressed specifically: an employer may summarily dismiss a worker who is absent without a legitimate reason, or without an excuse acceptable to the employer, for more than 20 non-consecutive days within one year, or more than seven consecutive days.

 

This dual threshold is important. The law does not require a single, continuous absence to reach the seven-day mark — a pattern of unexplained absences that cumulatively exceeds 20 non-consecutive days within the relevant one-year period can also satisfy the statutory threshold. Employers tracking attendance should therefore maintain a clear, dated record of absences rather than relying on subjective impressions of chronic absenteeism.

 

Article 44 also covers other forms of serious misconduct, including falsified documents, serious breaches of safety instructions, disclosure of work secrets causing specified harm, workplace intoxication, assault and unlawful exploitation of a position for personal gain. Where chronic absence coincides with separate misconduct falling within Article 44, the employer should assess each ground independently and document the evidence supporting it.

 

Mandatory Procedural Safeguards

 

Meeting the numerical threshold under Article 44 is necessary, but it is not sufficient on its own. The article expressly requires the employer to conduct a written investigation with the worker before imposing summary dismissal. The dismissal decision must then be issued in writing, state the reasons for dismissal and be handed to the worker.

 

Cabinet Resolution No. 1 of 2022, particularly Article 24, also regulates disciplinary penalties generally. It requires the appropriate penalty to be proportionate to the seriousness of the violation and provides that the worker must be notified in writing of the allegation, with the worker’s statements and defence documented before a disciplinary penalty is imposed.

 

Skipping the written investigation can undermine an otherwise defensible Article 44 dismissal. Informal warning emails are not necessarily a substitute for the investigation required by Article 44. A robust file should typically include written notice of the allegation, specific dates of unauthorised absence, the employee’s response, an assessment of the 20-day/seven-day threshold, supporting attendance records and a final written decision identifying the statutory basis for dismissal.

 

Importantly, Article 44 does not prescribe a minimum number of prior warning letters for the specific absenteeism ground. The focus is on establishing the statutory conditions and complying with the required investigation and written-decision process. This should, however, be distinguished from other Article 44 grounds where the law expressly requires prior warnings.

 

MOHRE Notification Obligations

 

Employers should also consider any notification obligations that arise from the particular circumstances of the termination. For example, where dismissal relates to a worker causing a serious material loss or deliberately damaging the employer’s property and acknowledging the same, Article 44 requires the employer to inform the Ministry of Human Resources and Emiratisation (MoHRE) within seven business days of becoming aware of the incident. This requirement is distinct from the absenteeism ground itself.

 

Accordingly, employers should avoid treating MoHRE notification as a generic requirement for every Article 44 absence case. The applicable reporting obligation should be assessed against the specific statutory ground relied upon.

 

End-of-Service Gratuity Is Not Automatically Forfeited

 

A frequent misconception is that an Article 44 dismissal automatically strips the worker of end-of-service gratuity. This is incorrect. Article 51 provides for end-of-service gratuity for eligible foreign workers who have completed at least one year of continuous service, calculated on the basis of basic salary. The fact that termination takes place under Article 44 does not, by itself, extinguish that statutory entitlement.

 

Employers should therefore calculate final employment entitlements separately from the question of whether summary dismissal was justified. Any claim for recovery of losses or deductions should be assessed under the specific statutory provisions applicable to that loss and should not be treated as an automatic forfeiture of gratuity.

 

Absence During Sick Leave

 

Absenteeism analysis intersects with, but is distinct from, the sick-leave regime under Article 31. After the probationary period, a worker is entitled to sick leave of up to 90 days per year, subject to the statutory conditions and payment structure. Where the statutory sick-leave period has been exhausted and the worker remains unable to return to work, the employer may have a separate statutory basis for termination, subject to the applicable requirements and payment of the worker’s lawful entitlements.

 

This is a different pathway from an Article 44 absenteeism dismissal and should not be conflated with it in termination correspondence. The employer should first establish whether the absence is medically certified and falls within the statutory sick-leave regime before treating it as unauthorised absenteeism.

 

Practical Guidance for Employers

 

1. Maintain a clear attendance record measured against both the 20 non-consecutive-day and seven-consecutive-day thresholds, rather than relying on subjective impressions of chronic absenteeism.
2. Do not shortcut the written investigation. Document the allegation, the employee’s opportunity to respond and the reasoned decision before issuing an Article 44 dismissal.
3. Assess MoHRE notification requirements according to the specific statutory ground relied upon, and retain proof of any notification made.
4. Calculate gratuity and other final entitlements correctly rather than assuming they are automatically forfeited following summary dismissal.
5. Distinguish absenteeism from sick leave, as the applicable legal basis and procedural requirements may differ.

 

Conclusion

 

The UAE Labour Law provides employers with a clear, but procedurally demanding, route to summarily dismiss employees for chronic unauthorised absence. The numerical thresholds in Article 44 are well defined, but they do not eliminate the need for a documented written investigation and a reasoned written decision. Employers must also distinguish the absenteeism ground from other Article 44 grounds, particularly where separate MoHRE notification requirements apply.

 

The practical lesson is straightforward: attendance records alone are not enough. Employers should establish the legal basis for dismissal, verify the applicable threshold, give the employee a genuine opportunity to respond and document the decision carefully. Employees facing termination on absenteeism grounds should likewise scrutinise whether the employer has established the statutory threshold and followed the required procedure. A carefully documented process can make the difference between a defensible termination and a costly employment dispute.

 

For enquiries or further information, contact ask@tlr.ae or call +971 52 644 3004. Follow The Law Reporters on WhatsApp Channels.