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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

Pre-covid, remote working was rare and not specifically addressed by legislation. In 2020, as a result of home-working requirements introduced due to the pandemic, the Ministry of Human Resources and Social Development (MHRSD) issued a Temporary Guiding Manual on Remote Working in the Private Sector (Remote Working Manual).

The Remote Working Manual provides that employers should have a technical system that meets, as a minimum, the following specifications:

  • enabling the employer to manage the worker's productivity remotely and supervise the tasks assigned thereto; and
  • granting the remote worker the powers enabling them to perform their work duties.

It also provides that “the Employer shall determine the management of the remote working method for its employees in terms of determining the working hours, whether they have specific times, or are flexible during the day, week, or month, provided that it shall determine mechanisms for monitoring its work and managing the worker's productivity”.

In relation to employees, it states that those working remotely should:

  • attend the workplace whenever necessary;
  • use, in the performance of their work, the devices designated for them by the employer, or the personal devices to which the workplace's cyber security controls apply;
  • keep the work information and documents in the technical tools of the employer;
  • abide by the policies and procedures related to cyber security and telecommunications stipulated by the employer;
  • preserve the tools and devices which are in their custody, take care thereof and request the necessary maintenance from the workplace whenever necessary; and
  • Return the tools and equipment provided thereto by the employer to carry out their work whenever requested.

Kingdom of Saudi Arabia (KSA) Ministerial Resolution No. 792 dated 22.02.1436 AH on Regulating Remote Work (MR 792) is also relevant as it provides eligible Saudi nationals with the right to apply for remote working. Although MR 792 only applies to Saudi nationals, it provides useful guidance as to what the authorities may deem appropriate in a remote-working arrangement.

MR 792 states that the contractual relationship of the remote worker should be regulated by a written employment contract expressly indicating that the employment with the employer is based on remote working and the contract shall determine the place(s) where the job tasks can be performed, the employee's tasks and job description, the number of working hours, the normal working hours, the wage and all other rights and benefits, in addition to any other rights provided for in the KSA Labour Law, Ministerial Resolutions and approved bylaws of the establishment.

MR 792 states that the employer shall:

  • provide the employee with all of the necessary tools and equipment to perform the work;
  • pay the cost of equipment maintenance to ensure the continuous functionality of the same;
  • pay the bills of telecommunications and IT provided to the employee to perform the tasks delegated to them; and
  • observe the general safety means – which should be available at the remote-working place –to maintain the safety of the employee.

MR 792 states that the employee shall:

  • maintain and take care of the tools and equipment – that are in their possession – and request the necessary maintenance of the same from the employer and the employee shall provide ordinary care and diligence;
  • return the tools and equipment provided to the employee by the employer – to carry out their work – whenever requested to do so, unless the parties agreed otherwise; and
  • not use the tools and equipment – in their possession – for any purpose other than required for the work, or in any illegal works.

It is worth noting that although MR 792 provides useful guidance for how to implement remote working for non-Saudi nationals (ie, its provisions are not mandatory to non-Saudi nationals) regarding Saudi nationals, any company that violates its provisions shall be subject to the following penalties:

  • a monetary fine of not less than 2,000 Saudi riyals and not more than 5,000 riyals pursuant to article 239 of the KSA Labour Law; and
  • all or some of the penalties stated under article 6 of Cabinet Resolution No. 50 dated 21.04.1415AH concerning Saudisation according to the procedures stated thereunder.

The above legislative provisions apply to employees and employers within the private sector operating within a traditional form of employer-employee employment relationships, and therefore do not apply to independent contractors.  

Last updated on 29/11/2021

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United Kingdom

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The UK has, for some years now, had in place a formal system by which certain employees can request their employers to implement flexible-working arrangements: see UK government guidance here.

A request can only be made by an employee with 26 weeks’ continuous service (which, in general, means an unbroken period of service with the employer or a related entity), and can only be made once a year. The right does not extend to non-employee workers.

There is a statutory format for making a formal request. This mechanism has not changed or been updated in response to the pandemic but continues to apply as it did previously. The rules differ slightly in Northern Ireland from the rest of the UK.

In addition to the formal, statutory flexible-work request process, many employers have been implementing more informal flexible work policies and arrangements. There is no bar on employers doing so outside the formal statutory mechanism, but any informal arrangements do not remove an employee’s separate right under the legislation to make a formal request. 

Employers must not unlawfully discriminate against their employees and workers when handling remote-working requests (whether they are formal or informal requests) or when making remote-working arrangements: see UK government guidance here and here (for the grounds upon which discrimination is unlawful). There is also a duty to make reasonable adjustments for disabled workers: see here.  Where remote-working requests or arrangements are not handled reasonably and consistently, this could also ultimately trigger an “ordinary” unfair dismissal claim.

In response to the increased interest in homeworking during the pandemic, some UK government agencies and quasi-government agencies have issued guidance relevant to their particular fields of interest.

From 13 December 2021, office workers in England able to work from home should do so, unless necessary to attend the workplace physically. Different government guidance applies to different sectors: see here. Different guidelines apply in England, Scotland, Wales, and Northern Ireland.

The Advisory, Conciliation and Arbitration Service (ACAS), a quasi-governmental service that issues guidance relating to workplace matters, has published some recommendations for successfully implementing homeworking: see here. This guidance is not legally binding but is often relied upon by employers, unions, employees and other stakeholders.

ACAS has also published guidance on dealing with Covid-19 in the workplace: see here.

In the UK, businesses have a common law obligation to take reasonable steps to protect the health and safety of employees and other types of workers, including those based at home. Under the UK’s health & safety legislation, the Health and Safety at Work etc. Act 1974, employers also have specific legislative duties concerning employees (including home-based employees).

Under the UK’s health and safety legislation, the relevant watchdog – the Health & Safety Executive (HSE) – has also issued some guidance on how to safely implement homeworking arrangements: see here. Specific HSE guidance on keeping workplaces safe during the pandemic in light of current restrictions can be found here.

There are separate regulations that deal specifically with employees who are computer users (and which regulate the usage of computers, screens, and relevant furniture such as desks/chairs), and these again also apply to home-based workers. More guidance can be found from the HSE here.

Last updated on 13/01/2022

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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Saudi Arabia

  • 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. These risks are heightened in Saudi Arabia as there are no specific data protection laws in place. 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 29/11/2021

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United Kingdom

  • at Littler

The key data protection risk associated with home working is data security.

In response to this, the UK’s data protection regulator – the Information Commissioner’s Office (ICO) – has issued guidance on the protection of personal data when working from home, using bring-your-own-device (BYOD) and working remotely (see: here).

The specific issues addressed include implementing appropriate workplace policies, IT security (including cloud-based storage security), the risk of theft and confidentiality.

Employers should update data protection policies to take account of remote working, in light of the ICO’s recommendations, and should also consider any data protection issues that may arise from an employee moving to work outside of the UK.

Last updated on 21/09/2021

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

Until recently, the legislative framework in KSA 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 data protection law or specific legislation dealing with monitoring worker activity remotely. However, in September 2021 KSA published its first comprehensive national data protection law to regulate the collection and processing of personal information. The Personal Data Protection Law (PDPL) was implemented by Royal Decree M/19 of 9/2/1443H (16 September 2021) approving Resolution No. 98 dated 7/2/1443H (14 September 2021).  It will be effective from 23 March 2022. The executive regulations supplementing the Law should also be issued before it comes into force.

The PDPL is designed to protect “personal data”(ie, any information, in whatever form, through which a person may be directly or indirectly identified). This expressly includes an individual’s name, identification number, addresses and contact numbers, photographs and video recordings of the person. The PDPL applies to any processing by businesses or public entities of personal data performed in Saudi Arabia by any means whatsoever, including the processing of the personal data of Saudi residents by entities located outside the Kingdom. The PDPL does not apply to the processing of personal data for personal and family use.

Individuals (data subjects), will, subject to some exceptions, have the right to be informed of personal data processing and the legal basis of such processing, the right to access their personal data (including to obtain a free of charge copy of the same), the right to correct or update their personal data, and the right to request its destruction if no longer needed. Data subjects may also file complaints relating to the application of the PDPL with the regulatory authority. Organisations that collect personal data and determine the purpose for which it is used and the method of processing (controllers) will be required to register on an electronic portal that will form a national record of controllers. Controllers must also ensure the accuracy, completeness and relevancy of personal data before processing it, to maintain a record of processing for a period that will be prescribed by the executive regulations, and to ensure that staff are suitably trained in the PDPL and data protection principles.

Data subjects may withdraw their consent to the processing of personal data at any time and consent must not be a pre-requisite for the controller to offer a service or benefit (unless the service or benefit is specifically related to the processing activity for which consent is obtained).

There are also additional laws in KSA that safeguard the rights of the individual to privacy. These include:

  • shariah law – its principles protect an individual’s right to privacy;
  • the Basic Law of Governance (Law No. A/90), which protects the privacy of individuals by safeguarding telegraphic, postal, telephone and other means of communication and making it unlawful to confiscate, delay, read or breach;
  • the Telecommunications Act (Council of Ministers Resolution No. 74/2001) restricts the disclosure of information or content that is intercepted in the course of its transmission; and
  • the Anti-Cyber Crime Law (Royal Decree No. M/17 makes it an offence to spy, intercept or receive data that is transmitted through an information network without consent, breach privacy through the use of camera-equipped and mobile phones, unlawfully access computers to delete, erase, destroy, leak, damage, alter or redistribute personal information, and defame or inflict damage on a person through the use of electronic devices.

While it is increasingly commonplace for employers to monitor the use of the internet and communications systems, especially email, before doing so – and to limit the risk of a potential breach of any of the above legislative provisions – employers should ensure that the employee has provided their 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

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United Kingdom

  • at Littler

Monitoring worker activity generally (whether remote-working or non-remote working) is possible but must be handled with caution and appropriate safeguards. As a general rule, employers are entitled to monitor worker activity to some extent, but they must undertake an impact assessment before doing so (which is an internal assessment of the impact of the proposed monitoring on data privacy), tell workers in advance about the monitoring and only monitor workers to the minimum extent reasonably feasible to achieve the employer’s goals.

The monitoring must be necessary, justified and proportionate. In other words, any monitoring must have a legal basis under GDPR for processing employee personal data in that manner (the legal basis may vary depending on the specific purpose of the monitoring), and the employer must also be able to demonstrate that: (a) the monitoring in question is a necessary and proportionate action to achieve a legitimate aim; and (b) that there is no less intrusive alternative way of achieving that purpose. There are also separate obligations in relation to data security and retention.

The more intrusive and extensive the monitoring, the greater the risk that employer monitoring may breach the UK’s data protection legislation, the Data Protection Act 2018 (and the UK’s implementation of the EU’s GDPR).

The ICO has previously published extensive guidance on how employers should implement a monitoring system. See here from page 58. This guidance was published before the pandemic, but is equally applicable. Recently, the ICO has also published specific guidance on monitoring employees using surveillance cameras, to check for compliance with pandemic health & safety obligations: see here.

Last updated on 21/09/2021

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

Please see question 1.

Last updated on 29/11/2021

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United Kingdom

  • at Littler

Unless provided for in an employment contract, in general there is no mandatory obligation on an employer to provide particular work equipment (save as part of its ongoing health and safety obligations, or in the context of making an adjustment for an employee with a disability), to pay a working-from-home allowance or to reimburse employees for costs associated with remote working.

Employees who have no choice but to work from home (including because of the pandemic) can claim tax relief on some utility expenses: see here for more guidance from HMRC (the UK’s tax authority). Similarly, an employee may be able to claim some tax relief for smaller items of equipment acquired by the employee for home working: see here.

Employees using work-supplied office equipment solely for work purposes (ie, not equipment owned by the employee, such as a work laptop) do not normally incur any tax liability in respect of the equipment: see here. There may be a charge if the employee is given or acquires the property from the employer: see here.

Last updated on 21/09/2021

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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Saudi Arabia

  • 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 – public policy rules in the host jurisdiction may apply to the employment relationship.
  • Health insurance requirements – minimum health insurance requirements in the host jurisdiction may exceed the minimum requirements in the KSA.
  • 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 29/11/2021

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United Kingdom

  • at Littler

Employees working remotely outside the UK may create expensive tax liabilities for themselves and their employers. It’s important to be aware of these before any long-term decisions are made.

The foreign country in which the employee is working may seek to tax some or all of that employee’s income from the employment. This is based either on the fact that a substantial number of days have been worked in that other country or in some cases on the basis that the employee has become a tax resident there under local law. Further, social security liability may accrue (which is generally assessed separately from income tax).

The main concerns for the employer will be whether there is an obligation to operate local payroll withholding and whether local social security rules add significantly to the wage bill. The rules vary widely between countries and, unfortunately, there is no “one size fits all” approach to managing this issue across multiple jurisdictions.

Employers will also need to consider the possibility that a UK employee working abroad may inadvertently create a “permanent establishment” of the UK employer in the other country, which in turn can expose part of the profits of the UK employer to corporate taxes in that other country. What constitutes a “permanent establishment” for corporate tax purposes in another country depends on the specific tax laws of that other country.

In practice, at a high level, most countries adopt a standard definition of a “permanent establishment”, which is derived from the OECD’s Model Tax Convention (being: (1) a fixed place of business in a country; or (2) a dependent agent, such as an employee, who acts on behalf of an employer and has, and habitually exercises, authority to conclude contracts in the name of the employer entity). This always needs to be checked on a case-by-case basis for the relevant countries involved. More information on the OECD convention can be found here.

Last updated on 25/11/2021

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

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

Last updated on 29/11/2021

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United Kingdom

  • at Littler

No, unless they implement the reductions formally with the agreement of the employee or (if relevant) the union.

Any unilateral reduction of salary or benefits by an employer without the consent of an employee can be challenged by way of a breach of contract claim, an unlawful deduction of wages claim, or a claim of constructive dismissal on the part of an employee.

However, it is possible that such a reduction could be agreed between the parties as part of an agreement, for example, to permit the employee to work remotely on a permanent basis.

Last updated on 21/09/2021

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

The MHRSD has mandated vaccination for all adults over 18 years of age if they wish to attend the workplace, with an implementation deadline of 1 August 2021.  Within KSA, all individuals must have downloaded the Tawakalna App and show their “green” status to enter all public spaces (which includes the workplace, malls, cinemas and, stores). Following the expiry of the 1 August deadline, the MHRSD issued guidance to employers regarding non-vaccinated employees, instructing them to take the following graduated measures:

  • permit employees to work from home if their role permits this;
  • ask employees to take their accrued untaken leave;
  • ask employees to go on unpaid leave; or
  • take measures in line with the KSA Labour Law, which potentially could include termination of employment.

With such a strong government policy in place, employers must enforce compulsory vaccination.

Last updated on 29/11/2021

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United Kingdom

  • at Littler

In almost all cases, no, an employer could not issue such a requirement or mandate. However, this answer needs to be read in conjunction with the answer to question 9, below.

Absent specific legislation enabling them to do so, employers who attempt to force their staff to be vaccinated may face potential constructive dismissal claims, data protection issues, and discrimination allegations.

At the time of publication this issue remains a highly controversial one, producing significant public debate, and the legal position may change quickly.

Specific legislation dealing with this issue is very limited. In the care homes sector, regulations were made requiring staff to be vaccinated, with effect from 11 November 2021. There are limited exemptions, including on medical grounds and for emergencies. The government is exploring whether to extend this to all health and social care workers with face-to-face contact with patients and service users, unless they are exempt. On current proposals, this would be effective from 1 April 2022, but it is not yet binding law and faces substantial opposition.

The Government has stated that it has no current intention of making Covid-19 vaccination mandatory more generally, but this position needs to be monitored.

Without specific legislation, the general legal position in the UK is that an employer has a legal right to issue “lawful and reasonable” instructions to employees, which they are required to comply with. Although the position has not yet been tested before the UK’s courts and tribunals, it is unlikely that a generic requirement or mandate for employees to be vaccinated would meet this test.

There may be a case for making vaccines mandatory for specific workers undertaking specific activity in certain health-care-related roles; however, again in the absence of legislation the issue is not so much whether the employer can mandate vaccination as opposed to what steps the employer is entitled to take if an employee is not vaccinated. Even if a case could be made for requiring staff to be vaccinated, an employer would need to carefully consider issues relating to data protection and discrimination.

Finally, ACAS has issued recent guidance on supporting staff through the vaccination process: see here.

Last updated on 13/01/2022

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

There is a minimal risk, given that a mandatory vaccination policy has been enforced by the KSA Government (see question 8).

Last updated on 29/11/2021

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United Kingdom

  • at Littler

As indicated above in response to question 8, the position has not yet been tested before the UK’s courts and tribunals and remains the subject of vigorous public debate.

Many commentators have highlighted the potential risks of unfair dismissal and discrimination claims by employees against employers, as well as data privacy issues, if employers make entry to a workplace subject to vaccination. These issues are discussed below.

Insisting on vaccination as a requirement to return to a physical work location may lead to the following employment law risks:

  • if an employee believes the requirement is an unreasonable demand, it can trigger them bringing a “constructive” unfair dismissal claim if they refuse to comply with it and resign in protest, or an “ordinary” unfair dismissal claim if they refuse and are dismissed. As there has been no judicial consideration of this issue, we do not currently know in what circumstances such a requirement would be deemed unreasonable; and
  • if the requirement is a blanket requirement without exceptions, it can give rise to potential discrimination claims, the most obvious of which are as follows:
    • if the employer does not make reasonable adjustments for staff with health issues who cannot be vaccinated, it could trigger a potential disability discrimination claim;
       
    • if a staff member cannot comply with the requirement because of a religious or similar belief, it may give rise to an indirect discrimination claim for this reason; and
       
    • similarly, a blanket requirement could indirectly discriminate against younger staff as, at the time of writing, not all over 18s will have been offered both vaccinations. In this context, it should be kept in mind that the general position is that the UK’s age discrimination legislation does not just protect older workers or workers over a particular age (such as workers aged at least 40) but can extend to all age groups. The particular issue with younger staff and vaccines should improve by the end of September 2021 when the government has said that all adults will have been offered both doses. Employers can consider making adjustments to the policy (such as allowing regular testing instead of double vaccinations).

Assuming there is no specific legislation enabling an employer to do this, the risks of making entry to the workplace conditional on individual vaccination may be mitigated somewhat if:

  • there is a specific and strong justification for the requirement, rather than just a generic desire on the part of the employer, that other COVID-safe working practices cannot achieve. This justification should be supported by the outcome of a properly considered risk assessment;
  • steps are taken to mitigate the impact on employees who cannot, for health reasons, comply with the requirement; and
  • there is an alternative working arrangement available to those who do not, or cannot, comply with the requirement (such as continuing to work from home).

Where employers can objectively justify restricting access on the above basis, the risk of such a restriction being successfully challenged by an employee will be reduced. However, it must be emphasised that this issue remains wholly untested in the UK judicial system.

Some employers in the UK are introducing a hybrid vaccination or recent negative test (PCR or lateral flow/rapid antigen) requirement for entry into the workplace. By providing an alternative to vaccination, this approach may reduce the risk of claims for unfair dismissal or discrimination. It does not lessen the data protection issues and employers should ensure they are complying with their data protection obligations. As with a vaccination-only policy such a hybrid policy is wholly untested in the UK judicial system.

There is a further, ancillary issue, relating to data protection. The ICO has issued guidance essentially to the effect that although employers may undertake spot-checks of employee vaccination status, in most cases it is far less likely to be justifiable for employers to retain a record of any employee’s vaccination status: see question 11 below, and also see here.  

Last updated on 13/01/2022

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

See question 8.

Last updated on 29/11/2021

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United Kingdom

  • at Littler

Yes.

The UK Department of Health and Social Care recently amended applicable regulations (the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014) to make it mandatory for all care home workers and other visiting professionals to be fully vaccinated against Covid-19 unless they have an exemption or there is an emergency. The changes took effect from 11 November 2021. Proposals to extend this to all health and social care workers with face-to-face contact with patients and service users are currently being discussed by the UK government. If passed in their current form this expanded vaccine requirement would be effective from 1 April 2022.

Last updated on 13/01/2022

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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Saudi Arabia

  • 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

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United Kingdom

  • at Littler

Information about a person’s vaccination status is special category personal data for the purposes of the GDPR. It represents part of their personal health record and is afforded additional protections under data protection law.

An employer should only seek to process such data if it has a lawful basis for doing so under the UK’s implementation of the GDPR and the Data Protection Act 2018. In particular, there are limited lawful reasons for processing special category data such as health records.

It is beyond the scope of this Q&A answer to provide a detailed analysis of the potentially lawful bases for processing the special category data of employees, but general guidance can be found from the ICO – see here.

For these purposes, processing means:

  • checking an employee’s vaccine status digitally (e.g., by scanning a QR code);
  • checking an employee’s vaccine status manually and retaining any data from any such check in any form; or
  • any subsequent usage of the data after it has been checked digitally or manually and recorded.

Employers should be aware that the ICO has issued specific guidance on processing employee vaccine status data. Essentially, this guidance is that although employers may undertake spot-checks of employee vaccination status, there will be significantly fewer cases where it would it be justifiable for employers to retain a record of any employee’s vaccination status: see the ICO’s position on this as follows (quotes taken from the ICO here; emphasis has been added by us):

Does the UK GDPR apply if I decide to check people’s COVID status?

If you are only conducting a visual check of COVID Passes (either a hard-copy document or a pass held on a digital device) and do not retain any personal data from it, this would not constitute ‘processing’ personal data. The activity would therefore fall outside of the UK GDPR’s scope.

However, if you are conducting checks digitally (for example, by scanning the QR code displayed on the pass), this would constitute processing of personal data – even if you do not keep a record of it. The UK GDPR would therefore apply.

If you make a record of any personal data, whether you conduct visual or digital checks, then you would be processing personal data and the UK GDPR would apply.

Can I record information about my employees’ vaccine status?

Your reason for recording your employees’ vaccination status must be clear and necessary. If you cannot specify your use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it….

Last updated on 13/01/2022

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

The KSA Labour Law does not consider remote working separately. The KSA Labour Law sets out certain health and safety procedures that employers must adhere to. Most of these requirements apply to all employers while some are sector-specific. In general, an employer is required to provide a healthy work environment for its workers that is devoid of any causes for occupational diseases, accidents or injuries. An employer must minimise the danger of tools and equipment used on site and prevent the occurrence of any accidents to maintain the health and safety of humans and protect properties from being damaged or destroyed.

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 29/11/2021

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United Kingdom

  • at Littler

Employers have an ongoing legal duty to maintain a safe working place and environment. Responsibility for health and safety at work rests with the employer, whether or not that work is being done at the worker’s home. To comply with this duty, employers must conduct a risk assessment of the employee’s place of work; this includes when they are working from home.

Under the UK’s health and safety legislation, the HSE has issued guidance on how to safely implement homeworking arrangements: see here

In undertaking a risk assessment, employers should consider the following (non-exhaustive) factors:

  • whether the employee is aware of any specific risks regarding working from home;
  • whether the work activity and the proposed workspace are suitable;
  • whether the employee has suitable equipment to enable the work to be done and, if not, who will provide this; and
  • what the supervision or work contact arrangements for the employee will be.

The assessment can be done by the employee where they are working remotely but the employer will need to ensure it is actually completed, recorded, and periodically reviewed. Issues that arise from the risk assessment must be appropriately addressed.

There are separate regulations that deal specifically with employees who are computer users (and which regulate the usage of computers, screens, and relevant furniture such as desks and chairs), and these again also apply to home-based workers. More guidance can be found from the HSE here. The guidance includes a checklist for working with display screen equipment that employers can use: see here.

Last updated on 13/01/2022

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

None from a statutory perspective; however, many employers have adopted additional mechanisms and assistance for employees dealing with mental health issues.

Last updated on 29/11/2021

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United Kingdom

  • at Littler

The pandemic has not directly impacted employers’ obligations beyond the physical workplace from a health and safety perspective, as the legal duties and responsibilities that apply to employers predate the pandemic. The difference is that these issues have assumed a higher level of attention due to the wholesale adoption of remote working as a result of the pandemic.

Last updated on 21/09/2021

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

There is no distinction in the KSA Labour Law. Please see question 12.

Last updated on 29/11/2021

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United Kingdom

  • at Littler

Not generally, except for:

  • different types of mobile workers (as opposed to home workers) may have specific needs or use different equipment, either temporarily or on an ongoing basis (in which case, the overarching health & safety principles remain the same but the application may differ); and
  • particular categories of mobile workers (for example, long-distance drivers) who may have the benefit of specific protections when it comes to working hours and rest breaks.
Last updated on 13/01/2022

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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Saudi Arabia

  • 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 29/11/2021

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United Kingdom

  • at Littler

When it comes to protecting the mental health and wellbeing of workers, employers owe the same duties to employees who are working remotely as to those who are not.  Employers have a duty to maintain a safe working environment, both in the workplace and when working remotely. 

The HSE has issued guidance on mental health issues in the workplace generally – see here – and stress has also been identified as an issue that may particularly affect home workers (see here).

ACAS has also issued guidance on managing the mental health of workers during the pandemic: see here.

Last updated on 13/01/2022

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

On 6 April 2020, Ministerial Resolution 142906 was published amending the implementing regulations to the Labour Law (last issued in January 2019) by adding a new clause 41 providing for the following:

  • In the event the Kingdom adopts measures as recommended by an international organisation to provide for adjusted working hours or to avoid a situation falling under article 74(5) of the Labour Law, which provides for termination of employment because of force majeure, an employer will be able to agree to any of the following measures with an employee for a six-month period following the introduction of such measures:
    • reducing the employee's salary in correspondence with a reduction in the employee's working hours;
    • putting the employee on annual leave as part of his annual leave entitlement;
    • putting the employee on exceptional leave under Article 116 (unpaid leave) of the Labour Law.
       
  • Termination of employment following the implementation of such measures will not be justified if the employer received assistance from any government programmes during this period (ie, furlough programme). Furthermore, nothing in this resolution prevents or inhibits employees' rights to terminate their employment contract.

The Ministry of Human Resources and Social Development further issued an explanatory memorandum providing that the employer may unilaterally implement the measures introduced by article 41.  The above measures came to an end in January 2021.

Last updated on 15/03/2022

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United Kingdom

  • at Littler

There has been no change to underlying employment legislation or rights relating to redundancies.

In theory, any unilateral suspension from duties, reduction in hours and/or any reduction in pay by an employer, without employee or union agreement (or a pre-existing employer right to make such changes), can be challenged by the employee or a relevant union. Such a challenge would most likely be by way of a breach of contract claim, an unlawful deduction of wages claim, and/or a claim of constructive dismissal (by the employee) or some form of industrial dispute (by a union). In practice, with the alternative to such action often being outright redundancy, legal claims by affected employees or unions have been relatively rare.

There are no special restrictions on employers being able to implement redundancies, in line with existing laws and subject to the usual safeguards of employees’ rights.

In early 2020, the UK government introduced a paid furlough scheme – called the Coronavirus Job Retention Scheme (CJRS) – allowing employers temporarily to suspend employees from work but still receive payment of part of their wages (supported by a government allowance to the employer). The scheme has now closed (it ended on 30 September 2021). Details of the scheme (now of historic relevance only) can be found here.

Last updated on 13/01/2022

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

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

Last updated on 29/11/2021

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United Kingdom

  • at Littler

There has not been any coordinated, general union campaign dealing with protecting employee entitlements and remote-worker rights.

The Trades Union Congress (TUC), which is an umbrella body representing 48 member unions, has published pandemic guidance for unions: see here.

Individual unions have also published commentaries on this issue from time to time.

Last updated on 13/01/2022

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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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

Not applicable – please see question 18.

Last updated on 29/11/2021

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United Kingdom

  • at Littler

Union activity in UK workforces is lower than in many other countries.

There is no legal obligation to consult a union about introducing a remote-working arrangement, unless there is a collective bargaining agreement in place that imposes such a requirement, or the employer habitually consults a relevant union about this.

Last updated on 25/11/2021