THE CONCEPT OF REMOTE WORKING AND ITS IMPLEMENTATION
Abstract: “Remote Working”, which was first entered into our law with the amendment made in the 4th paragraph of Article 14 of the Labor Law on 06.05.2016; is an employment relationship agreed in writing based on the principle that the employee performs his/her work at home or outside the workplace with technological communication tools within the scope of the work organization created by the employer. The elements of remote working; can be summarized as organizing the process of the performance of work, fulfilling the performance of work remotely, fulfilling the performance of work through technology. In recent years, especially with the development of technology, it is revealed that the implementation of remote working, which is frequently implemented both in the IT sector and in the sales sector, has become a employment model especially preferred by many employers during the pandemic process we are in.
Remote working regulated in the 4th paragraph of the article 14 of the Labor Law is designed as a employment model that is implemented outside the primary workplace but within the scope of the same work organization of the Employer. There are also opinions regarding the relationship between the employee and the employer is a contract of construction rather than a employment contract, due to the weakening of the personal dependency, which can be defined as the management and control authority of the employer over the employee, which is the mandatory element of the employment contract in remote working. However, in the doctrine and precedent jurisprudence, it is concluded that the freedom of the employer when performing his/her job is within the scope of a work organization is sufficient for the drawing up an employment contract. In this way, it would be appropriate to state that the dependency factor required to draw up the employment contract is not intensely required, and that a service relationship will be drawn up if the remote working model satisfies the legal requirements.
The conditions of remote working are regulated in paragraph 5 of Article 14 of the Labor Law. Accordingly aforementioned regulation and the principle of equal treatment, it is obligatory to conclude a written employment contract in case of the existence of remote work, the description of the work, the way of performing it, the duration and place of the work, fees and the matters regarding the payment of fees, the equipment provided by the employer and the obligations regarding their protection, the communication of the employer with the employee and the provisions regarding general and special working conditions.
Employers working remotely cannot be subjected to different procedures compared to peer workers, solely due to the characteristic of the employment contract, unless there is a fundamental reason. In accordance with this regulation and the principle of equal treatment, the employer is obliged to treat all employees in the workplace equally with those who work personally and remotely, to subject all employees to the same regulations in terms of annual leave, working and resting hours, career opportunities and insurance.
The employer may want to check whether the remote worker is working within the scope of the right to manage. For this, the parties can determine the hours that the employer will be available. In addition, the employer may request the employee to log into a system via the computer, access the employee’s computer remotely, and follow the mouse movements of the worker. However, in such cases, it is obligatory to balance the interests between the employer’s right to manage and the privacy of the employee’s private life, and to fully comply with the legal obligations regulated in the Law on Protection of Personal Data. In addition, in case the Employer is obliged to protect the employee’s personality pursuant to Article 417 of the Code of Obligations, the Employer must first clearly inform the employee about this monitoring method by determining its limits. However, the audit of the employer should be related, limited and measured to the purpose for which it is processed. Accordingly, the employer should implement to the narrow-scoped restriction possible. In cases where the employee uses her/his own personal computer, these limitations should be determined more clearly and carefully.
The employer is obliged to inform the employee about the occupational health and safety precautions, to provide the necessary training, to provide health surveillance and to take the required occupational safety measures regarding the equipment provided, taking into consideration the characteristic of the work performed by the employee with whom he/she works remotely. In addition, it should be emphasized at this point that, due to the work performed remotely, there will be a possibility to occupational accident at the place where the remote work is carried out and within hours determined in writing by the parties.
In the relevant legal regulation, although it is stated that considering the procedures and principles of remote working and its characteristic, it is stated that in which works remote work cannot be performed, the implementation of employment rules regarding data protection and sharing and other issues will be regulated in the regulation to be issued by the Ministry of Family Labor and Social Services, no regulation has been yet published on this subject at the time this annotation prepared.
Finally, during the pandemic we are in, it may be necessary for the employee to temporarily perform her/his work from home for a compulsory reason. In such cases, it is controversial in the doctrine whether the employment relationship turns into remote work. According to the first opinion on the subject, it is stated that the work performed from home for a temporary or compulsory reason during the pandemic process does not have the element of “regularity” and this work does not mean remote work since there is no “being subject to the employer’s work organization” criterion in Article 14 of the Labor Law. However, according to the second opinion on the subject, it is claimed that the element of “regularity” should not be considered as one of the fundamental criteria for evaluating any form of work as remote work, and in this respect, temporary work from home can also be considered as remote working. However, during the pandemic process of the predominant opinion, working from home temporarily due to compulsory reasons cannot be evaluated within the scope of remote work regulated by the Labor Law, we would like to state that the aforementioned amendment is only possible by terminating the current contract and concluding a remote work contract again, or if the employee consents in writing to this situation, which constitutes a fundamental change in the work conditions within the scope of Article 22 of the Labor Law.