1. In General

The working model which widely known as home office or working from home is a working model that is often exercised in practice. It is a work system in which the employee freely determines the place where he or she works, unlike the classical workplace definition. The concept of teleworking, which has been frequently used both in IT and sales sector with the enhancement of the technology, is also being preferred by many businesses which have been able to adapt themselves to technological developments. In line with the technological development, the concept of teleworking has also been introduced into Turkish Labor Law No. 4857. Legislation in 2016 with the amendments brought to Article 14 of the Law which reads as;

"Telecommuting; It is the work relationship established in written and based on the principle of fulfilling the work of the employee at home or out of the workplace with technological communication tools within the scope of the work organization created by the employer. ".

  1. The Concept Of Workplace In Teleworking

The concept of the workplace is defined in the legislation as an organization where the employee is organized together with material and non-material elements for the purpose of producing goods or services, where the employer is connected with the goods or services produced in the workplace in terms of quality and which is organized under the same management, including places and tools connected to the workplace, including rest, breastfeeding, eating, sleeping, bathing, treatment and care, such places as physical and vocational training places and courtyard. However, the employee who works through telework performs his / her work in his / her home most of the time, other than the areas mentioned in the definitions. But will the employee's home be considered a workplace within this context?

It is important to identify the workplace when it comes to Health and Safety measures because it is clear that it is the responsibility of the employer to ensure the safety of the workplace whereas it might fall under the responsibility of the employee to make sure safety is provided at home while performing the duties.

It is pretty straightforward that the Employer is not allowed to inspect the teleworking employee's home due to privacy, inviolability of domicile and discretionary search concerns, therefore, performing of the duties at home does not necessarily mean that employee's home shall be deemed as workplace within the meaning of law.

  1. Wage In Teleworking

Article 14, Paragraph 6 of Labor Law reads as follows; "Employees in teleworking shall not be subjected to different processing according to the precedent employee solely because of the nature of the employment contract unless there is a fundamental reason. The employer is obliged to inform the employee about occupational health and safety measures, to provide the necessary training, to provide health surveillance and to take the necessary occupational safety measures regarding the equipment he/she provides, taking into account the nature of the work done by the employee with whom he/she is working with a teleworking relationship. "Based on the foregoing clause and due to principle of equal treatment among the employees, it is forbidden to make different wage payment to the employee comparing to his/her fellow employees solely on the ground that the employee is performing his/her duties by virtue of teleworking. Likewise, it is also forbidden to make any wage reduction solely on the ground of teleworking.

  1. Food Allowance In Teleworking

The general principles of labor law including the principle of equal treatment imposes that side pay, premium/bonus payments, social benefits and entitlements afforded to precedent employees should also be made available to employee who is teleworking. Otherwise, the legal liability of the employer will arise because of the violation of the equal treatment requirement. Meal assistance to employees is also one of the side payments listed above. In this case, if the employer extends food allowance to the employees who are working normally during working hours, it is mandatory to provide the same to the personnel who are teleworking. If the Employer does not provide food allowance however provide the meal at its workplace with its own resources, we are of the opinion that the Employee shall reimburse the teleworking employee who could not benefit from such right due to teleworking.

The Employer who has extended the possibility of teleworking to its employees is not allowed to bring any reduction in food allowance which was paid before due to transition into teleworking. The Employer who wants to make deductions has to obtain the written consent of the employee due to the change in the fundamental elements of the employment contract. Otherwise, legal liability arises.

  1. Transportation Allowance In Teleworking

Transportation allowance is an incentive granted by the Employer to the Employee to ensure the employee reaches to workplace. If such transportation assistance is provided by transportation of the employees through shuttle, the person who is teleworking cannot benefit from transportation assistance. However, if transportation allowance is provided to the employee in cash, there are two emerging options. First and foremost, it should be noted that there is no need to pay a transportation allowance to the employee who will start working immediately through teleworking.

As a rule of thumb, the transportation allowance is paid to the employee for the days of commuting to and from work. If the Employer makes the payment for transportation allowance based on actual working days and cuts for holidays (annual leave days, national and religious holiday days, rest, excuse leave, etc.) as a general practice, then the Employee is not entitled to transportation allowance if he/she switches to teleworking.

In the event that the transportation allowance is a fixed one, indicated at the payroll of the employee and not subject to any cut due to holidays, then transportation allowance shall be deemed as a part of the wage, which means any deduction in transportation allowance shall be subject to written approval of the Employee.

  1. Working Hours and Overtime In Teleworking

Another issue arising out implementation of telework concept is whether the working hours are respected or not. Here, with the progress in technologies, Employers can partially control if the working hours are honored but essentially the Employee is expected to comply with the working hours within the frame of mutual goodwill rules.

At the companies which are familiar with remote working, have necessary equipment and infrastructure and conduct business through online programs, it is not conclusive however relatively easy to detect whether working hours are respected by simply checking the duration of online and offline times. In addition, if the duties of the employee are performed in due course and meticulous manner, it is deemed that the working hours are honored by the teleworking employees.

The control of whether daily working time is exceeded will only be possible by monitoring the intensity of daily work in the workplaces that can be run through online programs. Otherwise, it will not be possible to prove that overwork has been done.

The work in national holidays, week holidays and religious holidays can be determined by examining the work in the workplaces using the electronic mail or online work system and again by the agreement of the employer and the employee within the framework of mutual good faith rules. In case of legal disputes, it will be possible to provide proof of work to the extent that the means of communication can be examined.

  1. The Concept Of Work Accident In Teleworking

In the Occupational Health and Safety Act No. 6331, an occupational accident is defined as an event that occurs in the workplace or due to the execution of the work, which causes death or makes the integrity of the body mentally or disabled. Even if the accident is not in the workplace, it is an undisputed occupational accident if it occurred due to the conduct of the business.

We have mentioned above Employer's equal treatment obligation among the employees. In accordance with this principle, the Employer, by taking in to account the nature of the work carried out by the teleworking employees shall provide necessary information and training about occupational health and safety measures, health surveillance and take necessary safety measures about the equipment. The responsibility of Employer arises if the employee has not been given adequate Occupational Health and safety information before establishment of the teleworking relationship.

The main question we face here is whether the event that happens to the employee is related to the work or not.

The application of concept of telework which has just entered into our working life also brings with it the discussions and gray areas, due to the fact that the secondary legislation which shall further elaborate and set the nuanced rules on implementation of the Law has not been enacted yet.

The Law counted every incident related to performing of work as a work accident. In this case, the events such as when the employee who works at home went to the kitchen and poured tea on the kettle while putting tea or cut his/her hand while preparing lunch for himself/herself, should not be considered as work accident because it is not related to the execution of the work. Of course, there is a view that argues otherwise. We are of the opinion that the deciding factor is whether the employee's home could be considered as a work place within the meaning of law. Given that the required supervision agencies (Social Security Institution and Labor inspectors) and the Employer do not have the authority to supervise and direct the employee's home, we believe that accidents unrelated to performing the work shall not be considered as a work accident and such conclusion is in line with the principle of equal treatment.

For further elaboration, another example might be, in case the employee, working at home falls from the chair he/she is sitting while performing his/her job, or spills the tea, should those accidents shall be considered as an occupational accident? Such an accident might be considered as an occupational accident, whether or not it is contrary to the information and training of the employer, simply because this time accident occurred while performing the assigned job. The accident occurred because the employee has focused on performing the delegated task, and the degree of fault of employee in occurrence of the accident has come to play in calculation of the compensation and contributory negligence and do not reveal the Employer from the liability.

  1. Occupational Health And Safety In Teleworking

As we have explained through our paper, the implementation of teleworking does not reveal the employer's Occupational Health and safety obligations, but might limit to a certain extent. It only sets limits. The employee is subject to periodic cares which are necessary for Occupational Health. Even if he/she does telework, he/she will be able to continue to benefit from the workplace physician.

In addition, the employer should give the employee the necessary information and training about the environment in which he/she will work, the necessary explanations should be made about the equipment he/she will use, and detailed information about their use shall be provided. Otherwise, the employer will be personally responsible for all damages that may occur.

  1. Conclusion

Although the concept of teleworking has been regulated with the amendments brought to Labor Law No. 4857 dated 06.05.2016, it has become widespread especially after the outbreak of Covid-19 pandemic. As a part of the fight against dissemination of the disease, Employers have encouraged their employees who could ably telework due to the nature of the job, to stay at home and perform the work remotely.

Even it is stipulated at Article 14 of the Labor Law that the secondary legislation on teleworking providing the details shall be enacted, so far the legislation has not been adopted yet.

That being said, in the absence of secondary legislation setting out the details, the content of the contracts and protocols to be executed by and between the Employers and the Employee will provide the working conditions and therefore utmost care shall be taken in drafting the additional protocols and amendments especially on taking the voluntary consent of the employee for the new conditions of teleworking. It is also of paramount importance that the details of teleworking shall be regulated at the workplace regulations of the Employer.

Etiketler: #teleworking #labour law #wage #food allowance #ransportation allowance #working hours #overtime #work accident #work safety

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.