New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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UAE

  • at Clyde & Co
  • at Clyde & Co

Pre-covid, there was an assumption that employees would work from their employer's premises and remote working was not particularly prevalent. Immigration approvals are employer-specific and also location-specific, in that the grant of a work permit and residency visa authorises the individual to work from the employer's premises. Legislation has not typically addressed the issue of home working until the issuance of the new Labour Law (Law No. 33 of 2021 (Labour Law)) and executive regulations to the Labour Law (Cabinet Resolution No. 1 of 2022 (Executive Regulations)), which came into force on 2 February 2022. These introduced non-traditional forms of employment, including part-time, temporary, flexible (or freelance), remote-working, and job-sharing employment relationships. No further guidelines have  been issued on these new forms of employment and we will need to see how these operate in practice from an immigration and Labour Law perspective.     

The Labour Law applies to all employees in the UAE, save for:

  • employees of the UAE federal and local government;
  • employees in the Dubai International Financial Centre and the Abu Dhabi Global Market;
  • members of the UAE armed forces, police and security services; and
  • domestic workers.

Several resolutions were issued by the authorities during 2020 as a result of covid-19 that provide for remote working in light of reduced capacity in the workplace due to covid-19 restrictions (eg, physical distancing).

Ministerial Resolution No. 281/2020 enforced remote working for all employees whose job did not require their physical presence at the office to combat covid-19, and provided some guidelines for remote working in the private sector.  

The guidelines provide that employers should:

  • provide the technical equipment necessary to carry out remote working through the use of smart and electronic systems;
  • determine mechanisms, standards of efficiency and productivity, and time frames for all tasks assigned to the worker;
  • determine the mechanisms for the management of remote working, such as determining working hours, whether set at a specific time or a flexible time during the day, week, or month;
  • ensure the availability of a safe technological environment to carry out remote working, taking into account the controls related to maintaining the privacy and confidentiality of data and codifying the powers to access systems;
  • follow up with remote workers electronically to ensure their commitment to working hours remotely and the completion of the tasks assigned to them; and
  • facilitate remote workers' communication with their colleagues in management and leadership, as required to perform tasks and access the necessary information and systems to perform the work, and provide video chat applications.

It further provides that employees should do the following:

  • obtain their employer's approval for remote working;
  • report to the workplace when requested to do so;
  • perform the tasks according to the specified timeframes;
  • be available to answer all calls, e-mails and any available means of communication to ensure continuous communication according to the requirements of work;
  • maintain the confidentiality of information, documents and papers, and utilise the remote working hours to complete the required tasks;
  • provide supporting evidence required by the employer regarding his accomplishments and productivity;
  • preserve remote-working devices provided by the employer and return them whenever so required; and
  • read and comply with the Privacy Policy for remote workers.

The guidelines only applied to employees and employers within the private sector who fall under the jurisdiction of the Ministry of Human Resources and Emiratisation and only applied (prior to the new Labour Law coming into force) to traditional forms of employer-employee relationships, and therefore did not apply to independent contractors.    

Last updated on 15/03/2022

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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UAE

  • at Clyde & Co
  • at Clyde & Co

Data loss, cyber security, privacy and maintaining confidentiality are the key data risks associated with working remotely in most jurisdictions. Taking precautions against importing viruses, compromising system security and maintaining confidentiality while working remotely are key considerations for employers. Internal policies and procedures should be put in place to ensure employees are aware of their obligations, and operating through virtual private networks could minimise potential risks. 

Last updated on 15/03/2022

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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UAE

  • at Clyde & Co
  • at Clyde & Co

Until recently the legislative framework in the UAE regarding data protection and personal rights to privacy was a patchwork, with discrete obligations and requirements contained in a variety of laws, as there was no comprehensive federal data protection law or specific legislation dealing with monitoring worker activity remotely. However, the UAE announced in November 2021 a new Federal Data Protection Law, Law No. 45 of 2021 (Data Protection Law), which came into effect on 2 January 2022. The Data Protection Law creates a framework to ensure confidentiality and to protect the privacy of individuals (ie, data subjects) by requiring organisations that fall within the scope of the Data Protection Law to implement appropriate governance for the management and protection of personal data. The Data Protection Law is designed to protect “personal data”, which is “any data related to a specific natural person or related to a natural person that can be identified directly or indirectly by linking the data”. This expressly includes an individual’s name, voice, image, identification number, electronic identifier and geographical location. It also includes sensitive personal data and biometric data.

Law applies to the processing of all personal data by controllers and processors located in the UAE, whether or not the personal data processing relates to data subjects in the UAE or abroad, and prohibits the processing of personal data without the consent of the individual (ie, the data subject), unless an exception applies. Controllers (a person or entity that determines the method and criteria for processing personal data and the purpose for the processing) will need to be able to establish the consent of the data subject where consent is used as the lawful basis for processing the data subject’s personal data. The following laws are also likely to apply:

  • The UAE Constitution;
  • The Criminal Law (Federal Law No. 31/2021, as amended); and
  • The Cyber Crime Law (Federal Law No. 34/ 2021, as amended).

An employer's ability to monitor employees' activities must be carefully managed and employers should obtain prior employee consent. The UAE Constitution contains a general right to privacy for individuals and guarantees freedom of communication by post, telegraph, or other means of communication. The Criminal Law also establishes criminal offences concerning intercepting or disclosing correspondence or telephone conversations and the Cyber Crimes Law likely extends this to IT communications. 

It is increasingly commonplace for employers to monitor the use of the internet and communications systems, especially email. However, in light of the above, employers should ensure that the employee has provided its express consent to any monitoring – this could be captured under the data protection clause of the employee’s contract of employment.

Last updated on 15/03/2022

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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UAE

  • at Clyde & Co
  • at Clyde & Co

Other than a requirement to provide a safe and appropriate work environment, there is no specific legislation addressing this point; however, the guidelines attached to Ministerial Resolution No. 281/2020 provide some guidelines for remote working in the private sector (refer to question 1). 

Last updated on 15/03/2022

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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UAE

  • at Clyde & Co
  • at Clyde & Co

While there is no explicit prohibition on working abroad, the key areas of concern and risk are as follows:

  • Application of local labour law – employers will need to consider whether the application of the labour law in the host jurisdiction can be excluded.
  • Public policy matters – it is possible that public policy rules in the host jurisdiction may apply to the employment relationship.
  • Health insurance requirements – it is possible that the minimum health insurance requirements in the host jurisdiction may exceed the minimum requirements in the UAE. 
  • Social security and tax – depending on the jurisdiction, an employee may incur liability for personal income tax and social security in the host jurisdiction.
Last updated on 08/11/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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UAE

  • at Clyde & Co
  • at Clyde & Co

Any reduction in contractual salary or benefits cannot be unilaterally imposed and will need to be mutually agreed upon with the employee. There may be scope to unilaterally amend non-contractual benefits depending on how they have been structured.

Last updated on 08/11/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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UAE

  • at Clyde & Co
  • at Clyde & Co

At present, there is no policy of mandatory vaccination in the UAE. It is, therefore, not compulsory for individuals to get vaccinated but it should be noted that in the Emirate of Abu Dhabi the authorities have taken steps to make it very difficult for individuals who are not vaccinated to access public spaces. While vaccination is not mandatory, the UAE government both on a federal and emirate level have taken steps to encourage vaccination and aim to have all adults in the UAE vaccinated by the end of 2021. Employers are, therefore, in a good position to encourage employees to get vaccinated and can take several measures to encourage it.  

If employees are unvaccinated or do not reveal their status, an employer would need to consider alternatives, including permitting remote work if this is suitable for the employee’s role or potentially putting in place other measures in the workplace such as separating unvaccinated employees from vaccinated employees, requiring negative PCR tests instead of vaccinations.

In the absence of a UAE government-mandated vaccination requirement to attend the workplace, termination for failure to take the vaccination could be assessed by a Labour Court as unfair.

Last updated on 08/11/2021

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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UAE

  • at Clyde & Co
  • at Clyde & Co

Implementing a mandatory vaccination policy poses a conflict between an employer’s obligations concerning the health and safety of its employees versus an employee’s right to choose whether or not to be vaccinated. Vaccination cannot be mandated; however, employers can state that access to the workplace will only be granted to those who are vaccinated. Requiring a covid-19 vaccination would require the employee’s consent. In such instances, consideration should be given as to the rationale and employee concerns, as well as whether employees perform a role that can be undertaken from home. The employer should also ensure that any vaccination policy allows for exceptions relating to pregnancy or other issues that may mean vaccination is not appropriate.

Last updated on 08/11/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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UAE

  • at Clyde & Co
  • at Clyde & Co

The Abu Dhabi Emergency, Crisis and Disasters Committee has announced that, from 20 August 2021, entry to many public spaces in the emirate will only be permitted to those who have been vaccinated and those exempt from having the vaccine. All Abu Dhabi government employees must also be vaccinated and have received a covid-19 booster shot to enter the workplace from 10 January 2022. Regular PCR testing is also mandatory within government offices.

Last updated on 15/03/2022

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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UAE

  • at Clyde & Co
  • at Clyde & Co

To help minimise the risk of non-compliance, employers should adopt certain procedures when handling employee data concerning identifiable individuals such as; ensuring that all employee data, including electronic data, is kept confidential and is not published without the consent of the individual to whom the employee data relates.

Last updated on 15/03/2022

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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UAE

  • at Clyde & Co
  • at Clyde & Co

The general health and safety provisions set out in the UAE Labour Law will apply even in the case of remote working. The UAE Labour Law deals with many aspects of employers’ and workers’ rights and obligations emanating from the relationship established by the contract of employment. General and fairly broad guidelines are given concerning issues such as protective equipment, instruction on hazards, provision of first aid equipment and medical facilities. It also imposes obligations on workers to use the protective equipment provided and to comply with instructions given by the employer.

Key health and safety considerations for remote working include:

  • Mental health – employers should consider what measures they can take to minimise the impact of remote working on employee mental health. This might include the introduction of wellbeing policies, counselling, and employee assistance programmes.
  • Electrical equipment – employers need to consider the provision and maintenance of electrical equipment.
  • Working environment – consideration should be given as to whether the employee has a suitable working environment.
Last updated on 15/03/2022

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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UAE

  • at Clyde & Co
  • at Clyde & Co

Not from a statutory perspective, but many employers have adopted additional mechanisms and assistance for employees dealing with mental health issues.

Last updated on 08/11/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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UAE

  • at Clyde & Co
  • at Clyde & Co

There is no distinction in the UAE Labour Law. Refer to question 12.

Last updated on 08/11/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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UAE

  • at Clyde & Co
  • at Clyde & Co

Employers have a general duty to protect or maintain the health and safety of their employees in the workplace, which includes mental health.

Last updated on 08/11/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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UAE

  • at Clyde & Co
  • at Clyde & Co

In general, the UAE Labour Law does not recognise the concept of redundancy and as such where an employee is terminated for reasons of redundancy, this could give rise to a claim of arbitrary dismissal. However, in response to the covid-19 pandemic, in March 2020 the Ministry of Human Resources and Emiratisation issued Resolution No. 279/2020 concerning employment stability in private sector establishments. The resolution encouraged employers to implement a range of measures to mitigate the financial impact of covid-19 to avoid or reduce the need for layoffs and mutually agree the following measures gradually and in turn with their non-UAE national employees:

  • remote working;
  • paid leave;
  • unpaid leave;
  • temporary reduction of salary; and
  • permanent reduction of salary.

Consistent with normal contractual principles, the resolution required that, in all cases, employee consent to the arrangement is obtained, which should be recorded in writing by way of an addendum to the contract signed by the employer and the employee. In the case of a permanent salary reduction, the resolution required that permission be obtained in advance from the Ministry of Human Resources and Emiratisation.   

The resolution encouraged many employers to implement alternatives to termination where possible.  

While the resolution is no longer being enforced by the Ministry, nevertheless it is a helpful reminder of the possible alternatives to redundancy that an employer ought to consider.

However, termination of an employee’s employment in the UAE is a unilateral decision (meaning the employer and the employee do not need to agree to the termination for it to be effected), and as such an employee’s employment can be terminated at any time by the employer. Notwithstanding this, where the employee’s employment is terminated for a reason considered unfair or arbitrary by a court, the court can award compensation as a result.

Last updated on 08/11/2021

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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UAE

  • at Clyde & Co
  • at Clyde & Co

Trade unions, collective associations, workers’ councils and the like are unlawful in the UAE and therefore do not exist.

Last updated on 08/11/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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UAE

  • at Clyde & Co
  • at Clyde & Co

Not applicable – refer to question 18.

Last updated on 08/11/2021