Middle East crisis: how to manage employee concerns during the conflict

With repatriation flights and safety concerns, maintaining a sense of normality and continued operations can prove difficult despite the day-to-day requirements of working there.

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Workers will, undoubtedly, be concerned about safety and security, particularly given the fast-moving nature of the conflict and its impact across the region, while for companies, finding a balance between keeping operations running smoothly and dealing with staff concerns becomes even more important.

• Read more: implications of the Middle East conflict for businesses

Managing these concerns will throw up potential operational challenges for companies to handle across the Gulf region, and raises employment issues many companies will not previously have needed to consider.

Working from home during the conflict

There is no statutory right to remote work in the UAE, Saudi Arabia or Qatar. Employees require employer approval, though contracts or policies may create a right that limits employer discretion, and local authorities can issue temporary directives – as they did during the pandemic – which override normal law.

This means careful consideration for companies as they look to strike a balance between continuity and care, and the following points should be taken into consideration:

• What is the best approach for the workforce from a safety and wellbeing perspective?Do employees’ contracts of employment / company policies create the right to work remotely? If so, the wording should be carefully considered, as where the right has been created an employer may require the employees’ consent in order to adjust the position
• Are there any directives in place from official authorities? Whilst the substantive law does not create a right to the option to work remotely, authorities such as the UAE’s Ministry of Human Resources and Emiratisation (MOHRE) or the DIFC Authority (DIFCA) often issue directives in times of uncertainty which alter the normal legal position. Although no such directive is currently in effect, we recommend employers monitor the situation closely and ensure that they are prepared to implement remote working arrangements should this become mandatory
• From an employee relations perspective, employers should consider the impact refusing reasonable requests to work remotely may have on staff. Whilst inevitably some remote working requests must be refused on the grounds certain roles are not capable of being performed remotely, we recommend that employers are well-placed to justify insistence on physical office attendance where employees are capable of performing their duties remotely without obvious impact on performance.

There may be pushback from employees hesitant to return to the office – even when the situation stabilises. Employers should anticipate this by undertaking a risk assessment; consulting with the employees as to the reason for returning to the office; and consider whether the employees can undertake any alternative activities to enable them to work from home.

Remote working overseas

For those with staff who are looking to operate remotely from another country during the crisis, a similar set of points exist to consider.

As mentioned above, an employer is not obligated to permit an employee to work remotely unless remote work has been authorised contractually or by way of company policy. However, while evacuation advisories from employees’ home country governments would not alter the legal position, we recommend employers remain mindful of such instructions and offer flexibility where possible - even where this conflicts with the business’ standard practices.

Where an employer has authorised international remote working, extra care should be taken to ensure employees remain complaint with immigration requirements of the base country. For instance, the UAE requires employees to enter the country at least once every six months to ensure that their residence visas remain valid.

Remote working overseas may also bring with it implications for those staff in their tax and social insurance obligations – both in the Gulf and in their home country where they are working from.

It is also worth reflecting on whether regional labour laws in the countries the staff are remotely working from have any impact on the role, or significant differences from those of the company’s country.

Employers should develop and constantly review a risk assessment around workplace location. This includes working outside of the region, working remotely but within the region, and working from the office. This would help them manage individual scenarios that might arise, such as where they are faced with a situation where a staff member wants to return to the region against their or government guidance.

Employers should develop a clear position on all aspects of working arrangement. If a company wishes to encourage its employees to work from outside of the Middle East region but certain employees wish to remain in the region or return to the region, we recommend preparing guidelines around steps the employees should take to ensure they are a safe as possible. If a company wishes to be extremely cautious, it may ask employees to sign a waiver to confirm that they understand the risks involved and they take responsibility for their own safety and wellbeing.

Health and safety obligations

Whilst there is no official employer health and safety guidance specific to the current conflict in place, employment legislation sets out general employer health and safety obligations which continue to apply.

General obligations under local labour laws, such as the UAE Labour Law, the KSA Labour Law and DIFC Employment Law, include the duty to provide a safe working environment and to take reasonable steps to protect employees from foreseeable risks. These laws do not impose any additional or enhanced obligations specifically due to the current regional conflict. However, employers may nevertheless wish to assess whether their physical location places employees in closer proximity to potential targets and whether, as a precautionary measure, allowing remote or hybrid working arrangements could reduce exposure to risk.

In addition to physical safety, employers should also give careful consideration to employees’ emotional wellbeing and overall welfare, recognising that heightened regional tension can affect mental health even where there is no direct physical threat.

It may be appropriate to offer access to employee assistance programmes, promoting open communication, encouraging the use of mental-health resources, and ensuring managers are equipped to identify and respond sensitively to signs of stress or anxiety to ensure prevention of any issues further down the line.

If an employee chooses to work from office and are harmed due to the conflict, employers may have some liability in certain circumstances. Some of the regional employment laws do set out particular levels of compensation for personal injury in the workplace – whether this would apply in a situation of an injury caused by the conflict will depend on all aspects of the situation.

What measures are there for those refusing to return to office?

Withholding salary

Regional labour laws are clear that employers may only deduct salary in very specific circumstances. Generally speaking these are limited to debt or overpayment recovery fines, and money paid on an employee’s behalf, such as rent and pension contributions.

This means there is not an express right for employers to withhold salary where an employee fails to attend work. However, the law reflects the principle that wages are paid in return for work performed – thus it follows that if an employee does not work, they should not be paid.

But with that, there is an important difference between an employee “refusing to work” and one “refusing to attend the office”. Where an employee would need to be physically present in their place of work in order to perform their duties - for example, a chef - an employer would be reasonably well-placed to take the stance that, as the employee failed to attend work and perform their duties, they will not receive their salary for the days in question. This would not be a disciplinary penalty – it would simply be adjustment of wages in order to reflect the time actually worked.

The situation can become complicated where an employee refused to attend their place of work in line with their contract of employment, yet performed their duties remotely. Where work has been performed, salary withholding may be viewed as a disciplinary penalty for failure to follow instructions and physically attend the workplace – meaning that the disciplinary procedure set out in the law should be followed prior to the deduction being applied, and the total deduction must not exceed five days’ salary for the month in question.

For specific areas such as the DIFC, things are further complicated by their own specific requirements. Unlike the onshore Labour Law in the UAE, the DIFC Employment Law does not accommodate the imposition of a financial penalty as a disciplinary measure. A DIFC employer may therefore encounter difficulty in justifying salary withholding where the employee continued to perform their duties remotely. Similarly, KSA labour laws are restricted on when salary deductions are permitted, with article 91 making circumstances clear and the Wage Protection System rules providing strict requirements for payments.

Obligated unpaid leave

Although it is not possible to force staff to take unpaid leave, as rules in the UAE and KSA would require consent from the employee, there are historical incidents which can impact this.

Ministerial resolutions have been implemented for limited periods allowing employers to require employees to take unpaid leave during times of economic disruption. As such, employers should be mindful that amendments to the standard legal position may be implemented from time to time as the situation develops.  

If an employee has left the country, the local law on unpaid leave would still apply.

If an employee does not agree with reduced salary or unpaid leave, any unilateral company decision to implement such a decision is likely to amount to a breach of contract or unlawful deduction from wages under the applicable legislation. We therefore recommend engaging in a reasonable consultation procedure to explain the company’s position, the temporary nature of the reduced pay or working hours, and the alternatives if the employees are unwilling to engage in this way.

Redundancy risks

DIFC Employment Law does not expressly recognise the concept of redundancy at all, although redundancy-based terminations slot neatly into DIFC’s “termination with notice” framework, provided that the criteria for redundancy do not have the potential to be deemed as discriminatory or retaliatory.

The onshore UAE Labour Law only permits redundancy in very narrow circumstances, namely:

• where the employer is permanently closing its business;
• where the employer becomes bankrupt / insolvent; or
• “any economic or exceptional reasons that prevent the continuation of business, in accordance with the conditions, rules and procedures specified by the Executive Regulations and the legislation in force in the State”.

Whilst this final ground could be considered as applicable in light of the current conflict, in practice, a situation would need to be specifically labelled as applicable by the UAE authorities before this provision could be irrefutably relied upon.

However, where notice of termination would be given in accordance with an employee’s employment contract, reliance on this wording would not be strictly necessary.

Additional repatriation costs

At present, employers are under no obligation to arrange or cover the cost of travel tickets where employees choose to leave the region as a result of the current conflict, even where evacuation is recommended by the employee’s home country government.

However, employers may wish to review any applicable policies and consider whether these could be adapted or applied flexibly in the circumstances. For instance, an employer may wish to consider whether an annual travel ticket policy could be relaxed so as to allow employees to bypass the usual authorisation process, enabling employees more immediate access to flights during the time of crisis.

Employment offers, start dates, force majeure, and onboarding

Many employers in the Middle East may want to understand how the conflict impacts on offers of employment they have made or on cases where they have already agreed a start date for new staff, especially those relocating into the region.

The local laws do not regulate the position with regards to start dates. Therefore, the strict legal position with regards to any particular start date will be set out within the terms of the employment contract.

If there are conditions within the employment contact or offer letter documentation, it may be lawful for employers to unilaterally postpone or terminate existing offers. Safest practice is to agree the conditions around a start date either in the original employment contract or an amendment to the employment contract by letter.

Over the past few weeks, companies and prospective employees have been in close communication with regards to start dates. The market approach we have observed is:

• where a role requires the individual to be in country within GCC, employers are having early discussions with their new joiners to agree a practical timeframe and a delayed start date; and
• where a role does not require the individual to be in country within GCC, employers are allowing employees to start their work remotely.

Although a force majeure clause is not typically used within offer letters or employment contracts, we would recommend adding conditions in relation to the conflict to create some flexibility for both parties in relation to the start date.

Remote onboarding is possible and it is something which employers are implementing in practice. The UAE Labour Law, DIFC Employment Law and ADGM Employment Law do not expressly restrict where an employee can work from. Therefore, it will depend on the wording within the employment documentation and policy of the company.

Companies should ensure they take legal and tax advice in respect of the country in which any remote working is taking place.

Visas

Generally, the immigration authorities are still completing visa renewals. We recommend commencing the visa renewal slightly earlier than companies would in normal circumstances.

The standard position is that for a visa to be cancelled, it requires both the employer and employee to sign the visa cancellation form. Therefore, if a visa is terminated, that will generally be connected to an employment termination or resignation as well.

If an employee is subject to a standalone police complaint or public prosecution that arises outside of the working environment, that does not automatically result in a visa cancellation. Where there is an active public prosecution, it is not normally possible to cancel the employee’s visa as the authorities require the individual’s residence status to be frozen during any such proceedings.