In response to the long-term and wide-ranging effects of the COVID-19 pandemic that we are experiencing, remote working has come to the fore intensively in employment relations in order to protect the health of the employers and employees. The definition of the remote working and the mutual obligations of the parties in this regard initially were brought to the legal field in 2016 with the amendments to the Article 14 of the Labor Law numbered 4857 (“The Law”). In this direction, the essential elements of remote working in Turkish labor law are stated under Article 14/Paragraph 4 of the Law as follows:
“Remote working; is an employment relationship established in writing, based on the principle that the employee performs the act of working at his/her home or outside the workplace through technological communication tools within the scope of the work organization created by the employer.”
At the first glance, one can state that the Law also regards the remote working method within the scope of the work organization created by the employer and defines the term based on the principal that employees performing their work at their home or outside the workplace through technological communication tools. Undoubtedly, the most striking feature in this sense is that while employment contracts in principle are not subject to a special legal form, unless otherwise specified in accordance with Article 8 of the Law (for instance, employment contracts with a duration of one year or more must be in writing); it is understood that the Law clearly obliges the parties to establish employment relations based on remote working in writing.
Under the fifth paragraph of the same article, it is also stipulated that the following matters must be decided under the employment contract to be established on the basis of remote working; (i) the definition of the work, (ii) the method of performing the work, (iii) the duration and place of the work, (iv) the salary and the payment of salary, (v) the equipment provided by the employer and obligations regarding its protection, (vi) the employer’s communication with the employee and (vii) the provisions on the general and special working conditions.
Additionally, in line with the “principle of equal treatment” described in Article 5 of the Law, Article 14/Paragraph 6 of the Law prohibits remote workers being subjected to a different treatment compared to their peer co-workers, without a fundamental reason and only reason being that employees perform their obligations with the remote working method.
Another issue that often comes to mind in practice is the work accidents that remote workers may be exposed to and the employer’s responsibility in relation to these accidents. In order to prevent the occupational accidents of workers working remotely, which will require an exclusive assessment for each concrete case, the Law obliges the employers on informing the employee about occupational health and safety measures, providing the necessary training, providing health surveillance and taking the necessary occupational safety measures regarding the equipment provided by taking the nature of the work performed by the employee who works remotely into account. It is important for employers to comply with the abovementioned occupational health and safety obligations in order to limit their liability from the occupational accidents their remote working employees may be exposed.
Finally, the Law regulates that the matters that in which jobs remote work cannot be performed, the application of the corporate rules regarding the protection and sharing of data in remote working relations and other issues which will concretise the legal framework of employment relations based on remote working would be determined by the regulation to be enacted by the Ministry of Labor and Social Security (“Ministry”).
Accordingly, the Regulation on Remote Working (“Regulation”) was introduced by the Ministry in the Official Gazette dated 10.03.2021 and numbered 31419 in order to ensure legal certainty with respect to the remote working method, which is frequently and widely used in line with the measures taken due to the COVID-19 pandemic. Apart from the legal obligations that have already been regulated by the Law and were repeated in the Regulation, the new obligations introduced by the Regulation regarding remote working relations will be examined below.
1- The Employees Working in the Workplace Starting to Work Remotely: The Principle of Approval and the Exception of Force Majeure
First of all, the provisions for the transition to remote work regarding the employees that are currently working in the workplace beginning to work remotely under a remote work contract are regulated with the Article 14 of the Regulation. With the aforementioned article of the Regulation, it is stipulated that for the employment contracts of the existing employees to be amended with the conditions on remote working, in principle, the employment contract should be concluded in writing and the employer and the employee must agree that the work would be performed remotely.
On the other hand, the request for remote working can also be submitted to the employer by the employee, in this case, regarding the written request of the employee; the employer must evaluate the suitability of remote working pursuant to the procedure determined at the workplace considering the nature of the job and the employee and other criteria to be determined by the employer and the employee must be notified in writing on the result of the evaluation within 30 (thirty) days. In this regard, please be reminded that if the employee’s request is accepted by the employer, the employment contract based on remote working should be concluded in writing. In parallel, while also the employee who started to work remotely can request to return working at the workplace by triggering the abovementioned request mechanism, such requests should be primarily evaluated by the employer in accordance with the Regulation.
Besides, in line with The Law, the exception to the abovementioned rule that seeking the employee’s request and approval is regulated under the Article 14/Paragraph 6 of the Regulation. In this respect, it is provided that the employee’s request or approval will not be sought in case that remove working is to be applied in all or in part of the workplace due to force majeure conditions stated in the legislation. Although the definition of the relevant force majeure is not expressly stipulated under The Law or the Regulation, under the Regulation on Short-time Work and Short-time Work Allowance which is enacted based on The Law, the force majeure is defined with the following wording: “the conditions that are not derived from the employer’s own administration, that are unpredictable, hence non-eliminative, the periodical conditions which are deriving from external factors that result in temporarily reducing work shifts or termination or suspension of the activity or the conditions such as earthquake, fire, flood, landslide, epidemic/pandemic, mobilization”.
Accordingly, subject to evaluation in the concrete case, it is evaluated that the effects of the COVID-19 pandemic may constitute a force majeure and within this scope the relevant employee’s transition to remote working can be assured by the employer unilaterally and without seeking the employee’s approval or request. On the other hand, it can be suggested that the written form requirement will also not be sought in the event that unilateral transition to remote working is implemented based on the said exception stipulated under the Regulation. But as stated above, it bears repeating that the employee’s right to request to return working at the workplace will be reserved in any case and the employer is obliged to evaluate and finalize such requests.
2- Jobs that cannot be Performed Remotely
As per the Article 13 of the Regulation, it is regulated that the employees who are stated under the following two groups cannot perform their jobs through remote working:
(i) (a) Working with hazardous chemicals and radioactive materials, (b) processing these substances or working with the wastes of such substances, (c) jobs that are involving the working operations bearing the risk of exposure biological effects and
(ii) To be determined by the public institutions and organizations responsible for the relevant unit, project, facility or service or receiving the service; (a) the works performed through procurement of services in accordance with the relevant legislation by the public institutions and organizations and (b) units, projects, facilities or services of strategic importance in terms of national security.
3- The Determination of the Duration for the Remote Working
Further determinations are made with the Article 9 of the Regulation for the duration for the remote working which is clarified by The Law that it must be determined in writing under labor contracts based on the remote working. Primarily in this context, it is stipulated that the parties may alter the working hours provided that the limitations under the applicable legislations are being complied. Moreover, it must be kept in mind that the imperative provisions of The Law regarding the maximum limit of the working hours and cases which is considered as working overtime and its conditions will be continued to be applied.
Besides, it is expressly stipulated with the relevant provision of the Regulation that working overtime during remote working shall be made as per the written request of the employer and the approval of the employee in compliance with the legislation. Said written form requirement is parallel with the written form requirement stated with its principle and exception under the Article 9 of the Regulation on Overtime and Overtime Working Regarding Labor Law. Nevertheless, as the case of working overtime can be proven with all kinds of evidence including witness statements in case of a prospective labour dispute, we would like to state that assurance of the form requirement as per the legislation and compliance with the maximum limit of working hours are of the essence for reducing legal risks of the employer.
4- The Arrangement of the Workspace
It is regulated with the Article 6 of the Regulation that arrangements for the place where the remote working will be conducted is to be made before the start of the work, in case it is necessary. Also, as the procedure of covering of the costs stemming from these arrangements (for instance the establishment of the internet connection, the procurement of the working furniture) are stated in the same provision as to be mutually agreed between the employer and the employee, the questions with respect to whether or not such costs are to be covered by the employer are partially answered. In other words, the costs arisen from the arrangement of the remote working space are all or in part can be charged to the employer or employee depending on the agreement of the parties.
In other respect, we would like to state that the employer’s determination of sharing of such costs which could practically preclude the employee from working remotely or it would become significantly difficult for him/her to work remotely may constitute a contradiction to “the principle of equal treatment” and equity.
5- The Supply and Utilization of the Materials and Work Tools
As per the Article 7 of the Regulation, if the contrary is not agreed under the labor contract, remote working employee’s materials and work tools necessary for the production of goods and services are to be supplied by the employer as a rule. Additionally, the clear and direct notification to be made to the employee who is working remotely with respect to the principles of usage of the relevant materials and work tools and their terms of maintenance and repair are under the employer’s responsibility. In accordance with the relevant provision, while the procurement of the work tools such as computers, phones and tablets is the obligation of the employer as a principle, the parties may also agree under the labor contract upon that relevant work tools would be provided by the employee.
If the work tools are being supplied by the employer, work tool list indicating the value of the work tools at the date of their handing over to the employee must be given in writing to the employee by the employer and a copy signed by the employee must be retained in the employee’s personnel file by the employer. The requirement of seperately preparing such document in writing will not be sought in the event that the work tool list is drafted within the labor contract or as an annex to the labor contract at the date of conclusion.
6- Covering of Production Costs
It is stipulated with the Article 8 of the Regulation that the determination and covering of necessary expenses stemming from the remote working and performance of the work which are directly related to the production of good or services will be stated under the labor contract. Within this scope, the determination of the costs that can be directly associated with the production of good and service and can be deemed necessary in practice such as the costs of electricity and internet, are also left to parties’ common will.
7- The Communication between the Employer and the Employee
Because of the nature of the remote working, the communication between the employer and the employee can significantly differ from the communication present with the employees working at the workplace. Based on this, the method of the communication (such as e-mail, phone and messaging applications) and the time period will be determined by and between the remote working employee and the employer as per the Article 10 of the Regulation.
Accordingly, through the interpretation of the wording of the clause stating that the time period when the communication would take place are to be agreed by the parties, although there are no provision of the legislation or decision of the high courts under the Turkish law confirming this opinion as of the date of this article, it can be evaluated that the employee can be implicitly entitled to “the right to disconnect” through the determination of the time period of the communication, along the lines of the decisions of the high courts of the several countries of European Union.
8- The Protection of Data
In accordance with the Article 11 of the Regulation, the employer is obliged to inform its employees working remotely about the business rules and relevant legislation regarding the protection and sharing of workplace and work data, and to take the necessary measures to protect the said data. In this respect, it is stipulated that the scope of the data that are needed to be protected and their nature will be determined under the labor contract. Lastly, as per the same article, the employee who is working remotely is obliged to comply with the business rules that are determined by the employer with the aim of protection of data.
The data mentioned under the Regulation may constitute the information that are deemed as trade secrets, concurrently may include the personal data which are processed by the employer in its capacity of data controller. In this context, we would like to bring to your attention that, starting with the the business rules to be applied to the employees working remotely and the tools that can be used in the projected personal data processing activity, the overall compliance of the remote working activity with the legislation on the protection of personal data must be also assured. Thus, in addition to the legal documents that are already used by the employer such as the privacy notice, the explicit consent text, personal data policy; the drafting and application of data processing and data policy documents that the remote working employees will be exclusively subjected can be needed.
Consequently, when the provisions of The Law and the Regulation with regards to the remote working which have become a part of the business life together with the measures taken against the effects of the COVID-19 pandemic are taken into consideration; while certain jobs could not be performed remotely, the terms regarding employee’s transition to the remote working, altering of working hours, the covering of the costs relating to arrangement of the workspace and production, the supply of the materials and work tools and determination of the means of communication are to be agreed upon parties’ common will. On the other hand, while the parties’ requirement to comply with the present obligations will continue as per the imperative provisions of The Law, it can be stated that employer’s obligation of registering of the work tool list and the employees’ obligation of complying with the business rules determined with the aim of the protection of the data are specifically stipulated by the Regulation.
Last but not least, considering the legal risks that may arise for the employer because of the occupational accidents and breaches of data security, we would like to point out that it bears significant importance to take the necessary measures by providing the necessary occupational health and safety trainings in accordance with The Law and the Regulation to the employees working remotely, and to prepare the data security policies exclusively in this regard in order to prevent data security violations and to review the technical and administrative measures in accordance with the flow of the current data processing activity.