Friday, November 6, 2009

Legal Issues in Retention of Employee Passports by Employers

The practice of employers retaining their employees’ passports has been justified on the grounds of “safekeeping” and as a foolproof method of ensuring that an employee does not leave the country without the prior knowledge of the employer. Some employers are also known to deny free access to their employees to use their passports or to travel freely.

A passport is a formal government document that certifies one’s identity and citizenship and permits a citizen to travel abroad. As a matter of fact, most governments prefer that their citizens exercise caution in agreeing to handover their passports to employers or to any other persons. In most countries, retaining the passport of a person without appropriate judicial authorisation is not permissible.

The courts in many GCC countries have consistently held in cases filed by aggrieved employees that passports should not be retained by employers. Further, retention of passports may also be an infringement of the Forced Labour Convention of the International Labour Organisation (ILO) which requires member-states ratifying the Convention to undertake to suppress the use of forced or compulsory labour in all its forms within the shortest possible period. Forced or compulsory labour is defined as all work or service which is extracted from a person under the menace of any penalty and for which the person has not offered voluntarily.

In the UAE, government circulars have been issued periodically proscribing the practice of retaining employees’ passports.

A similar circular was issued in November 2006 in Oman by the Ministry of Manpower upholding the right to retain one’s passport but without prescribing a penalty [or private right of suit] for its infringement. Consequently, enforcement is no easy task.

The ostensible justification that employers hold forth is that their employees may be controlling substantial parts of their assets and withholding their passports gives them the leverage to counter any attempt to misuse the authority vested in the employees. But this is a restraint on the right to free movement and could give undue advantage to the employer in a dispute. Further, the Supreme Court has ruled that foreign workers are no longer required to obtain the permission of their employers to seek new employment in Oman. The impact of this ruling could remain largely illusory if the employer retains the passport of the employee seeking new employment.

Retention of the employees’ passports may be an efficacious means to exercise control over the employees but it is clearly not a legal option available to employers. This underscores the need for employers and governments to devise a legally enforceable mechanism to remove the uneven bargaining power between parties.