February 13, 2018

Emiratisation update: the right to request remote working

In an effort to create new job opportunities and encourage a better work-life balance for UAE nationals living in remote areas, the UAE Ministry of Human Resources and Emiratisation (MHRE) recently published Ministerial Resolution No. 787 of 2017, concerning teleworking (the Teleworking Resolution). This article explains the details of this new law.

In an effort to create new job opportunities and encourage a better work-life balance for UAE nationals living in remote areas, the UAE MHRE published a Ministerial Resolution allowing the possibility for remote teleworking...

Background

Teleworking is the concept of using information and communication technology to work remotely from an employee's normal place of work, whether on a daily, weekly or monthly part-time or full-time basis.  Remote working is relatively new to the UAE as, traditionally, it has been envisaged that an employee's normal place of work will be at the registered premises of their employer. However, continued developments in information and communication technology, coupled with the desire to increase the employment of UAE nationals (including those who live in areas remote from the main business hubs of the UAE) in the private sector, has prompted the MHRE to encourage companies to allow UAE nationals to work remotely.

The right to apply for teleworking

The Teleworking Resolution gives eligible UAE nationals the right to apply for teleworking (i.e. to work remotely). The employee must:

  1. be employed by a company registered with the MHRE:
  2. have six months' service if employed on a full-time basis; or
  3. have at least one year's service if employed on a part-time basis.

Evaluating an application for teleworking

When evaluating an application for teleworking employers are encouraged to consider whether:

  1. the proposed teleworking arrangement is compatible with the nature of the employee's work and duties;
  2. the proposed teleworking arrangement is compatible with the employer's operational requirements;
  3. the proposed teleworking arrangement improves the employer's service and/or would result in additional cost for the employer; and
  4. the employee has the necessary skill-level to undertake his role remotely.

Responding to an application for teleworking

Employers must respond to an application for teleworking within 20 working days, if necessary communicating the reason(s) for refusal.  Where an application for teleworking is rejected, an employee may re-submit the same application on a further two occasions in the same year.

Reasons for refusing flexible working in other jurisdictions

The right to request flexible working exists in other jurisdictions, such as the UK. It is therefore likely that international employers in the UAE will look to these other jursdictions for additional guidance on factors to take into account when considering a request for teleworking. For example, UK employment law specifies particular grounds on which a request to work flexibly may be refused which include the following:

  1. the extra cost which would be incurred by accepting the request;
  2. the employee's work cannot be reorganised among other staff;
  3. other people cannot be recruited to undertake the employee's work;
  4. accepting the request to work flexibly would affect the quality and performance of the employee's work; and
  5. the employer's business would not be able to meet customer demand.

Implementing teleworking arrangements

If an employee's application for teleworking is accepted and the proposed teleworking arrangement is implemented, their employment will continue to be governed by UAE Federal Labour Law No. 8 of 1980, as amended (the UAE Labour Law).  However, the Teleworking Resolution requires that a teleworking agreement be entered into by the employer and the employee setting out the terms of the teleworking arrangement, such as:

  1. a breakdown of hours to be worked at the employer's premises and those to be worked remotely;
  2. the remote locations from which the employee is permitted to work; and
  3. any wages, allowances and leave provided in excess of the rights provided for in the UAE Labour Law.

The teleworking agreement should be attached to the employee's contract of employment.

Other considerations for employers

In addition to the specific obligations set out in the Teleworking Resolution and the usual operational requirements relevant to the employer's business, there will be a number of other important considerations for employers when implementing a teleworking arrangement, such as:

  1. how will the employee's performance be managed?
  2. how will the employee maintain contact with their manager or supervisor?
  3. how will the employee ensure the security of the employer's data and confidential information?
  4. does the employee need specialist equipment to work from the remote location?
  5. does the employer need to undertake a risk assessment of the remote working location?
  6. how, and by whom, can the teleworking arrangement be terminated?
  7. does the employer's insurance policy cover remote working (e.g. what if the employee suffers an accident at the remote location)?

There are evidently some challenges for employers when implementing teleworking working arrangements. Nevertheless, private companies need to be aligned with the UAE Government's policy of Emiratisation in the workforce and developing a proactive and consistent policy towards remote working for UAE nationals will help to achieve this.