The Remote Working Regulation (the “Regulation”) which has entered into force upon being published in the Official Gazette on 10 March 2021, sets out the procedures and principles applicable to remote working.
“Remote working” has become much more common with Covid-19 pandemic impacting the globe. Article 14 of Labor Law No. 4857 (the “Law”) regulates the concept in general without providing for details. The Regulation provides further details on the concept such as matters to be agreed between employees and employers, particulars of the working engagement without amending anything that has already been regulated under the Law.
Remote Working (Telecommuting)
Under the Law and the Regulation, “remote work” is defined as: “An employment engagement which is to be entered into in writing and on the basis that the employee fulfills his/her working obligations within the employer’s working organization through technologic communication devices at his/her residence or at somewhere other than the work place” .
Employee’s Right to Request Remote Working
The Regulation regulates the circumstances whereby an existing employee working at the work place requests to change his/her working method to remote working or the employment engagement between the employee and the employer is established as remote working in the first place.
Existing employees working at the workplace are entitled to request to switch to remote working provided that the type of the work being carried out by the employee is suitable for remote working. The employer who receives such written request from an employee must evaluate the request and inform the employee of its decision within 30 days. The employee may only switch to remote working if his/her request to switch is approved by the employer. The Regulation does not explicitly regulate whether or not the employer may decline the request of the employee whose work description is suitable for remote working at its sole discretion without showing a just cause. However, the Regulation also provides that during the evaluation of the employee’s request to switch to remote working, the employer may take into account the criteria set by itself in addition to the assessment on whether or not the employee and the employee’s work description are suitable for remote working.
If remote working is implemented in whole or in part of the workplace for compulsory reasons specified under the legislation, employee's approval and/or request will not be necessary for switching an existing employee’s working engagement to remote working.
Certain Obligations of the Employer
Certain key obligations of the employer in case there is a working relation based on remote working, which are explicitly set out under the Regulation, are as follows:
- unless otherwise is stated in the employment contract, procuring the necessary materials and work tools for production of goods and services,
- notifying remote working employee clearly and openly about the usage principles and maintenance and repair terms of materials and work tools,
- providing the remote working employee a list of work tools delivered to him/her, including their prices on the delivery date, in a written form (a copy of the delivered document signed by the remote working employee must also be kept by the employer in the employee’s personnel file),
- informing remote working employee about the business rules and relevant legislation regarding the protection and sharing of data regarding the workplace and the work he/she performs (we recommend making the notification in writing and receiving a written statement from the employee stating that the notification is received and read by the employee ),
- informing remote working employee about occupational health and safety considering the nature of the work performed by the remote working employee, providing necessary training, providing health surveillance and taking occupational safety measures related to the equipment provided by the employer.
Working Hours, Communication with Employee
Another subject set out under the Regulation is working hours in case of “remote working” and communication of the employer with the employee. Working hours and duration of remote working is to be determined under the employment contract, but the limitations regarding the working hours under the relevant legislation must be adhered to. Methods of communication between the employee and the employer and time periods during which such communication may be conducted is also to be determined by the employee and the employer together. As it is the case for the employment at the workplace, over time work by remote working employees is subject to written request of the employer and the consent of the employee. Rules under the Law in relation to overtime work also applies to “remote working”.
Remote Working Employment Contract
A written contract must be executed for “remote working” employment both in case the relevant employee is agreed to work remotely at the time of employment and the employment engagement of an existing employee is switched to remote working. In case of switching the existing employees’ working methods at the work place to remote working, it is advisable to sign a new contract and/or to agree on relevant matters in writing which the employee and the employer countersign, even if there is an existing written employment contract with the relevant employee.
The Regulation requires the following to be regulated under the employment contracts:
- work description,
- methods of conduct,
- working duration and location,
- wage and matters relating to determination of the wage,
- equipment provided by the employer together with regulations for their protection,
- rules of communication between the employer and the employee and the general and special working conditions.
The Regulation sets out that arrangements related to the location where the work will be performed remotely is to be completed before the initiation of the employment and how costs for such arrangement will be covered is to be determined by the employee and the employer together. Unless otherwise is provided for under the employment contract, necessary equipment for performance of the work is to be provided by the employer. Calculation and coverage of production costs is to also be determined under the employment contract.
Works that cannot be Carried Out Through Remote Working
As per the Regulation, the following works cannot be carried out through remote working:
- works with dangerous chemicals and radioactive substances,
- works with processing of such substances or works with wastes of such substances,
- works involving work processes with risk of exposure to biological agents.
In addition to above, in respect of:
- the works procured by the public agencies and institutions in accordance with the relevant legislation as service procurement, and
- the units, projects, facilities and services which have strategic importance for national security,
the relevant public agency or institution which is responsible for the relevant unit, facility, project or service or procures such service is to determine whether remote working can be implemented or not.
No Discrimination to Remote Working Employee
With Covid-19 pandemic many workplaces have implemented “remote working” and this method of working is becoming much more common. It is worth noting that pursuant to the Law, a remote working employee cannot be subject to procedures and terms different from those applied to a fellow employee solely because of his/her remote working condition without a just cause.