Homeworking might once have been restricted to entrepreneurs, novelists or other roles that don't require an office space, but since the COVID-19 pandemic started employees from all kinds of sectors have been forced to work from home. Thankfully, technology has developed to the point where the 'portable office' has become realistic for a wide range of jobs, but what are the long-term implications of this exodus from the employer's office?
Working from home (WFH) in the private sector has tended to be the exception rather than the rule in the UAE. Many employers were resistant to the idea of WFH, often simply on the basis that short commutes between home and the workplace negated the need for most employees to WFH. However, in March 2020 the landscape literally changed overnight when strict UAE government-mandated restrictions suddenly came into force in response to the COVID-19 pandemic. Employers and employees adapted to the new norm of remote working with impressive speed and success and it seems that WFH in some form or another is here to stay in the UAE.
For the purpose of this alert, we have focussed on the legal requirements that currently apply to:
- Private sector employers and employees subject to Federal Law No. 8/1980 (the "UAE Labour Law") and the Ministry of Human Resources and Emiratisation Resolution ("MOHRE") No. 281 of 2020 on remote working in the private sector during the application of precautionary measures to limit the spread of COVID-19 (the "Remote Working Resolution"). Employers based in free zones should take advice on whether the Remote Working Resolution applies to them; and
- Private sector employers and employees subject to the Dubai International Financial Centre ("DIFC") Law No.2/2019 (the "DIFC Employment Law").
Up until 31 July 2020, the DIFC Presidential Directive No. 4/2020 (the "DIFC Directive"), which implemented emergency employment COVID-19 measures, was in force. As at the time of writing, the DIFC Directive had not been extended; accordingly, any aspects of the DIFC Employment Law that were relaxed whilst the DIFC Directive was in force (including in relation to health and safety obligations - see below) must be complied with in full from 1 August 2020 onwards.
A separate remote-working regime is currently in force for national employees of certain UAE ministries and federal bodies (see Cabinet Resolution No. 27/2020). A detailed examination of that regime is outside the scope of this note but, in summary: certain criteria apply to determine whether a role is suitable for remote-working; and two types of remote-working are available - partial remote working (where the employee's work time is divided between the main workplace and the remote workplace) and full-time remote working (where the job is performed completely outside the main place of work). The UAE Federal Authority for Government Human Resources (FAGHR) has already announced that remote working will continue for some of these federal and ministry employees, even after the COVID-19 restrictions ease.
Do employees have a right to work from home?
Private sector employees do not have a legal right to work from home under either the UAE Labour Law or the DIFC Employment Law. However, in response to the COVID-19 pandemic, UAE-government imposed restrictions on movement, caps on workplace capacity and health and safety obligations, which effectively forced employers to implement and encourage remote working where possible.
For onshore UAE employers, the Remote Working Resolution set out guidelines to regulate remote working. In particular, it mandated employers to implement a remote working system for all workers whose jobs did not require their physical presence at the main workplace, and to give priority for remote working to employees from defined vulnerable groups. This included employees who were: pregnant; mothers to children in grade 9 and below at school; over 55 years old; a person of determination (that is, those with a disability); or suffering from respiratory or chronic illness. The Temporary Guide attached to the Remote Working Directive also imposed certain obligations on employers, including providing the necessary tools for remote working. In addition, the MOHRE Ministerial Resolution No. 279/2020, considered in our previous alert, empowered employers to implement WFH systems.
The Remote Working Directive/Temporary Guide did not give employees a freestanding right to work from home - they are required to obtain approval from their employer to WFH and must still report to the main workplace when requested.
Similarly, whilst the DIFC Directive did not grant DIFC employees the right to insist on WFH, it did grant DIFC employers a similar power to impose WFH for the duration of the Emergency Period (21 April 2020 to 31 July 2020), including means of measuring engagement and productivity. It also imposed obligations on employers to ensure that adequate cybersecurity measures were in place for WFH, and to notify employees that IT systems and equipment may be monitored whilst WFH (or otherwise document and demonstrate that such monitoring outweighed the employee's privacy considerations). As the DIFC Directive is no longer in force, DIFC employers should review any WFH measures that have been imposed during the Emergency Period and consider whether additional steps (for example, obtaining employee consent) are now required to ensure the effective and lawful continuance of those measures. In relation to monitoring, regard should also be had to the new DIFC Data Protection Law (Law No. 5/2020), which came into force on 1 July 2020 (the "Data Protection Law").
What if my employees refuse to work in the office?
At the height of the pandemic, restrictions were imposed on the percentage of the workforce that could physically attend the workplace. Those restrictions have been lifted in the UAE and the majority of businesses can now operate at full capacity. But what happens if an employee refuses to return to the workplace?
Broadly, in both jurisdictions (DIFC and onshore UAE), employees are required to attend work if requested to do so by their employer, unless they have a lawful reason for not attending. An unreasonable refusal to return to work could be grounds for disciplinary action and, potentially, dismissal. For example: DIFC employees have a statutory duty to comply with their employer's reasonable and lawful instructions (DIFC Employment Law, Article 58(c)), which could include an instruction to return to the workplace; onshore employees risk summary dismissal if they are absent from work without valid reason for more than 20 non-consecutive days or 7 consecutive days (Article 120(j)).
Accordingly, the issue is essentially two-fold: (1) has the employer given a reasonable and lawful instruction to return to work; and (2) has the employee unreasonably/unlawfully refused to do so? This analysis is inevitably subjective and there is no one-size-fits-all approach.
In assessing whether the employer's instruction to return is reasonable, a key consideration will be the extent to which the employer has complied with its general obligations to ensure employees' health and safety at work and all government-issued guidance/requirements in order to operate a suitable and safe workplace (such as providing masks, implementing temperature checks, physical distancing, and regular sanitisation). In addition, a prudent employer will have ensured that it has communicated to its employees the health and safety measures that have been implemented and given them reasonable notice of the date by which they are expected to have returned to work (note that neither the UAE government nor the DIFC set a formal deadline by which employees must return to work).
If all the required steps have been taken, but an employee still refuses to return to working in the office, we recommend that the employer should carefully consider the specific reason for the refusal, the employee's personal circumstances, and whether it is possible to make any adjustments to accommodate/alleviate the employee's concerns. For example, if an employee is in a vulnerable category (e.g. older employees, pregnant employees, and employees who have underlying medical conditions), it may be appropriate to extend their WFH arrangements if they cannot be kept sufficiently distant from their colleagues in the office. Similarly, employees with childcare responsibilities may, until schools resume normal service, require some additional flexibility to WFH or work altered hours.
Having carefully complied with any health and safety obligations and precautions, and taken any reasonable and proportionate steps to accommodate/alleviate employee concerns, an instruction to return to the workplace is likely to be a reasonable one and any action taken by the employer in response to a continued refusal (such as disciplinary sanctions, including dismissal) should (absent any other reason making the action unlawful, for example, discrimination) be justified.
What if the employee's home environment isn't suitable to work in?
Under DIFC Directive, employers' obligations to provide a safe system of work (in accordance with Articles 43 to 54 of the DIFC Employment Law) were suspended during the Emergency Period. However, now that the Directive has expired, it is arguable that these obligations could extend to providing a safe WFH environment - particularly where an employer insists on an employee WFH, or where it is necessary due to personal circumstances (e.g. if they are vulnerable). The extent of this duty is not clear, nor does it seem to have been tested, in the context of WFH. However, prudent employers wanting to ensure business continuity (and the security of their data) are likely to want to carry out some form of WFH risk assessment and provide some basic equipment to enable the employee to perform their duties remotely. In contrast, the Remote Working Directive clearly requires employers to provide the necessary tools for remote working.
If an employee insists on WFH and their working environment isn't suitable, it may be reasonable for an employer to refuse their request; however this is likely to depend on the extent to which employers can assist/have assisted with providing a suitable environment (e.g. by the provision of equipment/tools) and the reasons for the employee's refusal to come into the office. If the refusal continues, employers may want to consider alternatives i.e. paid/unpaid leave and potentially redundancies (also see the section above regarding refusal to return to work).
How can I protect confidential information when my employees WFH?
The protection of confidential information and data is inherently more difficult when employees are WFH, given that the employer has little to no control over how the information is used or stored in an employee's home, and has no right of access (a physical search an employees' home for this purpose is unlikely to be justified).
Employers should also implement (and enforce) clear policies and monitoring mechanisms to ensure employees are using and storing confidential information appropriately and in accordance with relevant legal obligations. For example, DIFC employers are required under the Data Protection Law to implement appropriate measures to ensure the security of personal data and protect it against loss and destruction. The Remote Working Directive/Temporary Guide similarly requires onshore employers to ensure the provision of a safe technological environment and monitor workers remotely; and requires employees to maintain the confidentiality of information and documents which can be flagged to employees (the DIFC Directive similarly imposed certain cybersecurity obligations on employers when it was in force).
Data protection, data monitoring, IT and working from home policies should be reviewed, updated and communicated to employees; and state clearly that any breaches could result in disciplinary action. Employers should also consider reviewing confidentiality and post-termination obligations contained in employment contracts to ensure they provide sufficient protection should a breach occur.
In practical terms, consideration should be given to some of the following protective measures:
- restricting access to confidential information (for example, by the use of password or ethical walls) to only those employees who genuinely require access in order to perform their duties;
- using only employer-approved devices and prohibiting the use for work of, or downloading or saving of employer confidential information to, personal devices (particular any personal devices which might automatically backup to cloud-based storage sites that are outside the employer's control);
- requiring employees to use secure wi-fi networks and only employer-approved video-conferencing facilities; and
- installing remote-deletion software on employer-provided devices in case of loss or compromise.
How can I manage employee performance when they WFH?
Employees working from home are subject to the same expectations as if they were working in the office and performance concerns should be dealt with in the same way. Policies should be updated to clarify suitable and acceptable behaviour when working from home to reflect new working practices, and to provide for flexibility in carrying out meetings and interviews through remote conferencing facilities.
When it was in force, the DIFC Directive enabled employers to impose means of measuring the productivity of employees WFH. In addition, for onshore UAE employers, the Remote Working Directive/Temporary Guide sets out obligations on employees which could assist employers with managing and monitoring their performance when they are WFH, including obligations to perform duties within specified timeframes, to make themselves available over the phone/by email, and to provide evidence on achievements and productivity. It would be good practice for both DIFC and onshore employers to communicate expectations of this nature to employees and update any relevant policies accordingly.
Employers should consider the extent to which any performance concerns could be due to poor WFH conditions or pressures otherwise caused by the pandemic e.g. inadequate IT systems and equipment, family distractions, sickness and stress - and whether support can be offered before any action is taken.
Do I need to introduce a WFH policy?
Given that WFH looks like it's here to stay, employers should certainly consider implementing a work from home policy to bring together the above law, guidance and best practice around WFH to ensure that expectations are clear. The policy should include rules for dealing with using/storing confidential information and data, regulating the use of personal devices for work purposes, and data/communication monitoring; as well as expectations around the degree of flexibility and notice required to WFH, and rules related to performance management, working hours and reporting requirements.
It is likely that implementation of a fair and flexible policy to facilitate WFH will be even more critical in the future to ensure that talent is retained, but also to ensure that businesses can adapt with ease if WFH is to be mandated by any further government restrictions.
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.