a. Introduction
Technological progress, which is accelerating all over the world and whose effects are becoming more intense, has revealed the need for many changes in business life. The remote working model, which began to be favoured during the pandemic period, is now accepted as a flexible working model and is becoming increasingly widespread in business life. This model can also be supported by the government to prevent unemployment and is encouraged by both employees and employers. While in the past teleworking was mainly practised in the textile and clothing sector, in recent years it has become widespread in many sectors such as advertising, software development, architecture, computer engineering and translation.
b. Legal basis and legal regulation of telework
In our law, the title of "Home Service Contract", which is regulated in Articles 461 et seq. of the Turkish Code of Obligations, is a fundamental basis for the regulation of teleworking. At the international level, the International Labour Organisation (ILO) Convention No. 177 on Home Work and the European Framework Agreement are among the legal bases for teleworking. Article 14 of the Labour Law No. 4857, which entered into force on 20 May 2016, added the concept of "remote working". Finally, the "Regulation on Remote Work" (the "Regulation"), which includes regulations on the procedures and principles of remote work, was published in the Official Gazette No. 31419 on 10 March 2021 and entered into force.
According to Article 14 of the Labour Code, "telework is an employment relationship established in writing and based on the principle that the employee performs his/her work outside the workplace at home or through technological means of communication within the framework of the work organisation established by the employer". The concept of telework in the law is a meta-concept that covers both work performed at home and work performed outside the workplace using technological means of communication, i.e. telework.
In both forms of work, the employee performs the work away from the workplace. However, the specificity of telework is that the work is performed with the use of information and communication technologies, such as computers, Internet, e-mail, etc., while maintaining a permanent connection with the workplace. Paragraphs 4-7 of Article 14 of the Labour Law contain common provisions applicable to both home-based work and telework.
Although telework weakens the element of dependency between the employee and the employer due to the flexibility it brings, the element of dependency between the employee and the employer is maintained as in the classical employment model. This is because the employee continues to participate in the employer's work organisation. In addition, the continuation of the relationship of command and control is also an indication of the existence of the element of dependence.
The telework agreement must be in writing. Paragraph 14/5 of the Labour Code clearly regulates the elements that must be included in a telework agreement. It states that the agreement must include "the description of the work, the manner in which it is to be performed, the duration and location of the work, the wage and matters relating to the payment of the wage, the equipment provided by the employer and the obligations relating to its protection, the manner in which the employer communicates with the employee, and the provisions relating to general and special working conditions".
A telework agreement can be concluded directly or the employment contracts of existing employees can be converted into a telework agreement with an additional protocol to be signed by the parties. In addition, all the work can be carried out remotely or some of it can be carried out remotely and some at the workplace. It is also possible for the employee working remotely to request to return to the workplace.
Therefore, in the most general sense of labour law, telework can be explained as a written employment relationship in which the element of dependency between the employee and the employer is maintained, although it envisages a work order that differs from the classical work environment in terms of time and place.
c. Tasks that cannot be performed remotely
The work that cannot be performed remotely is regulated in Article 13 of the Telework Regulation. According to this article, telework cannot be carried out in the context of work with dangerous chemicals, radioactive substances, work with the processing or waste of these substances and work where there is a risk of exposure to biological agents.
In addition, it is stipulated that whether telework can be carried out in the work carried out by public institutions and organisations through the procurement of services in accordance with the relevant legislation and in units, projects, facilities or services of strategic importance in terms of national security shall be determined by the public institution and organisation responsible for the unit, project, facility or service in question or by the public institution and organisation receiving the service.
d. Obligations of the employer and the employee in remote working
In the remote working model, there is usually no difference in the obligations of the employee and the employer arising from the employment contract. The employer is obliged to observe the employee, treat the employee equally and pay wages in the teleworking model, and the employer is obliged to provide the employee with tools, equipment and materials in accordance with the provisions of this working model.
The employee, on the other hand, has a duty to work and a duty of loyalty, as well as a duty to perform his or her work diligently. In addition, the employee is also responsible for not damaging the information and communication tools, machines, equipment or production materials provided to him/her for work purposes.
e. Provision, use and protection of equipment
As mentioned above, the main factor that distinguishes telework from other flexible working models is the use of technology. Teleworking requires the use of equipment such as telephones, computers, smart tablets and the Internet. The programme and software systems used to carry out the work and the costs of maintaining and repairing these systems are also included. It is therefore important to determine which of the parties will provide the necessary equipment and under what conditions.
The Labour Code does not explicitly state which party is responsible for the costs of teleworking. However, Article 14 of the Labour Code and Article 5/2 of the Regulation stipulate that "the equipment provided by the employer and the obligations regarding its protection" shall be specified in the contract.
Article 7 of the regulation stipulates that the responsibility for the material and the party to bear the costs must be determined in writing at the beginning, and if not, the employer must bear the communication costs.
The second paragraph of the same article stipulates: "If the employer provides the work tools, the employer shall provide the worker with a written list of the work tools, indicating their cost, on the day they are provided to the worker. A copy of the document given to the worker, signed by the worker, shall be kept by the employer in the worker's personal file. If the list of work tools is issued as an annex to the employment contract within the employment contract or on the day of the contract, it is not necessary to issue a separate written document''. Therefore, in addition to providing the equipment, the employer is obliged to install, maintain and repair it and to inform the employee about these issues. The teleworker must use the equipment provided in accordance with the requirements of his work within the framework of the duty of care.
f. Remuneration and principle of equal treatment
The remuneration of the teleworker may be freely determined by the parties, provided that it is not below the minimum wage, as in other types of contracts. However, different rates of pay may not be set for employees who actually work in the workplace and for employees who work remotely, unless there is a reason to justify the distinction. Otherwise, such a distinction would be contrary to the principle of equality as set out in Article 5 of Labour Law No. 4857. Furthermore, there is a special provision in Article 14/6 of the Labour Law to ensure that remote workers are not discriminated against solely on the basis of their working style.
However, we believe that some distinctions can be made due to the nature of telework. For example, the travel allowance paid to employees working at the workplace may not be paid to teleworkers. This is because the travel allowance is usually a wage paid for the days the employee travels to and from work. This would not be contrary to the principle of equal treatment. However, in cases where telework is for a limited period or a temporary situation, the employer should not refrain from paying the travel allowance normally paid to the employee by claiming that the telework is "temporary".
g. Proof of working time and overtime in the case of teleworking
The working hours and rest periods laid down in the Labour Law also apply to teleworkers. Some workers may prefer this type of work because it offers advantages such as being able to spend more time with their families, being able to determine their own working hours, or avoiding the burden of commuting to and from the workplace. However, there are also some uncertainties about overtime and rest periods during telework. This is because the flexibility of teleworking can lead to workers not being able to clearly define the concept of overtime and thus to an increase in overtime. This situation leads to a blurring of the boundaries between work and private life, especially when working from home.
Article 9 of the Regulation, entitled "Determination of working time", stipulates that the time and duration of telework must be specified in writing in the contract. In addition, changes may be made between the parties within the limits set by the Labour Code. In the case of overtime, it is stipulated that, upon the employer's written request, overtime requests shall be fulfilled with the employee's consent.
Due to the freedom to regulate the working hours of teleworkers, there may be disputes regarding working hours. Therefore, it is important to define and control the working hours of remote workers. In our law, the burden of proof for overtime is on the employee. However, there is no legislation or case law on the proof of overtime for work done from home. However, the decisions of the Court of Cassation on this issue are mostly in the field of sales and marketing, and due to the flexibility of teleworking and the determination of working hours by the employees, more clear and precise evidence is required to prove overtime.
In the decision of the 9th Civil Chamber of the Court of Cassation dated 17.02.2015, E. 2013/10875, K. 2015/6980, it was stated that the employees working from home are not bound to a certain concept of working hours and therefore their overtime claims should be rejected:
"In the present case, it is clear from the information and documents in the file that the claimant works with a home-office working system. According to this working system, it is understood that the plaintiff determines the working hours himself and does not work under a certain time concept, therefore the plaintiff's claim for overtime pay should be rejected. The applicant, who works from home, also works on general holidays on his own initiative. For these reasons, it is inappropriate to decide to uphold the applicant's claims for overtime and general holiday pay, whereas they should be rejected".
In order to facilitate the proof of overtime, methods such as a written agreement between the employer and the employee on the working hours, the monitoring of these hours by technological methods or voluntary reporting can be used. In addition, taking into account the specific characteristics of remote working, it may also be possible for the parties to reach an agreement on working hours through secure methods suitable for verifying the identity and will of the parties, such as counting.
h. Health and safety obligations
The employer is obliged to take the necessary measures for occupational health and safety in remote working situations, as in normal working situations, in accordance with the Occupational Health and Safety Law No. 6331, the Turkish Code of Obligations, the Labour Law and other relevant legal provisions. In fact, as mentioned above, there are legal provisions regarding the prohibition of discrimination against remote workers. The employer is obliged to inform the employee about the occupational health and safety measures for remote work, taking into account the nature of the work performed by the employee, to provide the necessary training, to carry out health surveillance and to take occupational health and safety measures regarding the equipment provided. Therefore, a worker should not be exempted from occupational health and safety obligations simply because he or she works remotely. The employer must provide remote workers with the necessary training and occupational safety measures in the same way as other employees working at the workplace.
In this context, given that a teleworker's workplace is now his or her own home, the question arises as to how the employer will ensure that this place/working environment complies with occupational health and safety rules. As a natural extension of the right to control, the employer may require that the worker's workplace meets certain standards and may monitor compliance with these standards. However, this supervision should not constitute an interference with the employee's private life or residential immunity and should not exceed the purpose of the supervision. It is also the employer's responsibility, in accordance with occupational health and safety requirements, to make arrangements in the workplace, to provide additional equipment or infrastructure requirements, and to remedy these deficiencies.
Considering that the teleworker's workplace is connected to the work organisation and that he/she fulfils his/her obligation to perform work in accordance with the employer's instructions, we are of the opinion that accidents occurring at the designated workplace during working hours may be considered as occupational accidents, taking into account the characteristics of the specific incident. However, there is no established case law or regulation on this issue.
i. Supervision and control by the employer and processing of employee data in teleworking
Data protection in teleworking refers to both the protection of the company's data and the protection of the employee's personal data and private life. According to the regulation, the employer is responsible for the protection of the company's data. Therefore, it stipulates that the employer must install the necessary system and take other measures to protect the data used and processed in telework. The employer is obliged to take all necessary measures and to inform the employee about the legal regulations and company rules on data protection. Therefore, the employer must provide the employee with the necessary training and make the necessary notifications. Behaviour of the teleworker that is incompatible with the obligation to protect data will be evaluated within the scope of Article 25/II-i of the Labour Code.
In the homeworking model, the employer's direct control and supervision over the employee is weakened compared to the traditional forms of employment, as the work is performed outside the main workplace. However, given that it is possible for the employee to access the necessary data through methods such as remote connection and file sharing, all software, applications and technologies that enable remote working must be implemented in a secure manner.
In particular, in the teleworking model, the exercise of the employer's supervisory and control powers by means of information and communication technologies, his permanent access to the employee or his surveillance by means of the installation of a camera in a part of the employee's home may imply an interference in the employee's private life and personal rights, and the limits of such practices should be clearly defined. Therefore, the protection of employees' private life in teleworking will only be possible by limiting the employer's supervision and monitoring activities.
Employers need to establish a clear and transparent policy on what data about employees can be processed during telework and how that data will be used. Furthermore, in order to respect employees' privacy and to ensure that telework does not have a negative impact on employees' living space, it is important that employers limit their monitoring activities to those situations where the work requires it. It is essential for the protection of workers' rights in telework that employers do not require workers to be available outside working hours and do not interfere with their private lives.
j. Notification of telework days
According to the General Letter of the Social Security Institute dated 5 July 2021, entitled "Notification of Remote Working Days", when submitting the monthly premium service certificate or the withholding and premium service declaration to the SSI, the days on which the insured person worked remotely during the month must be indicated separately. According to this letter, for those working under mixed contracts, national, public and religious holidays, general holidays and weekends, as well as days worked at the workplace, are always included in the number of premium days, while only the days actually worked remotely should be reported as remote working days.
For example, if an employee who has a 4-day weekly holiday in a month works 5 working days at the workplace and the remaining days remotely, the number of days remotely worked should be reported as 21 days and the number of days premium paid as 30 days, as the employee has 4 days holiday and 5 days working at the workplace. If an insured who has 8 days of weekly leave in a month spends half of his working time at a distance and half at the workplace, the number of days of teleworking should be reported to the system as 11 days and the number of days of premium payment as 30 days, since he has 22 working days and half of them at the workplace.
For a member who spends all of his working time remotely, weekends, national and public holidays should also be reported as remote working days and both the number of premium payment days and the number of remote working days should be entered into the system as 30 days.
In non-permanent and occasional cases where the employee has to visit the workplace for a short period of time, there is no need to change the written contract as the employee's main working pattern does not change. The calculation of the number of remote working days should be based on the periods specified in the written agreement.
k. Conclusion
In conclusion, the remote working model is a flexible working arrangement with various benefits and obligations for both employees and employers. This model, which has become widespread with the technological advances accelerated by the pandemic period, has been supported by comprehensive legal regulations within the framework of labour law and is implemented within certain legal frameworks to protect the rights of the parties.
Remote working also raises the need to regulate working hours, working conditions and, in particular, overtime. In this context, it is important to balance the mutual rights and obligations of employers and employees, to protect employee data and to fully comply with occupational health and safety measures.
While it is anticipated that the remote working model will become more widespread in the future, it is expected that legislative changes and regulations will evolve in accordance with the requirements of this working model.
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i. Court of Cassation 9th Civil Chamber, E. 2013/10875 K. 2015/6980 T. 17.02.2015 Numbered Decision https://www.dejure.ai/dokuman/ff9a3c7c-df44-4aa3-bfc7-4372da83f00e
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
