Remote Work (Home Office)

Remote work has spread rapidly under the influence of digitalisation and the experience of the pandemic and has become an established form of employment. Its statutory basis is Article 14 of Labour Law No. 4857 (İş Kanunu); the details are governed by the Regulation on Remote Work (Uzaktan Çalışma Yönetmeliği) published in Official Gazette No. 31419 of 10 March 2021. Structuring remote work in a legally compliant manner – in particular with regard to the content of the contract, work equipment and expenses, working time, data protection and occupational health and safety (OHS, İSG) – is of growing practical importance for employers, since many standard contracts do not adequately reflect the particular features of remote work.

Contents

• What is remote work?
• What formal requirements apply to a remote work contract?
• What must a remote work contract contain?
• Who provides the work equipment and who bears the costs?
• How are working time and communication regulated?
• What obligations exist in the area of data protection?
• What obligations exist in the area of occupational health and safety?
• For which work is remote work not permitted?
• How does the transition between workplace-based work and remote work take place?
• What must be considered when working remotely from outside Turkey?
• What applies with regard to the equal treatment of remote employees?
• Conclusion

What is remote work?

According to the statutory definition, remote work (uzaktan çalışma) is an employment relationship established in writing under which the employee performs the work at home or outside the workplace by means of technological communication tools within the work organisation set up by the employer. This covers not only working from home in the classic sense but also working from various locations using technological communication tools, as well as hybrid models combining days at the workplace with days of remote work. Remote work does not change the employee's status under employment law. The protective provisions of the Labour Law, including those on remuneration, annual leave and termination, continue to apply in the same way.

What formal requirements apply to a remote work contract?

The remote work contract is concluded in writing. The terms of remote work may be set out in the employment contract in the case of new hires and, where an employee already working at the workplace switches to remote work, in a written supplementary agreement. The written form serves to clarify the specific conditions of remote work and, in the event of a dispute – for example concerning the sharing of costs or communication times – is the principal means of proving what was agreed. A company-wide remote work policy does not replace the written contract or supplementary agreement that must be concluded with each employee.

What must a remote work contract contain?

Under the Regulation, the contract must in particular address the following matters:

• Description of the work and the manner in which it is performed
• Duration and place of work
• Remuneration and terms of payment
• Work equipment provided by the employer and the obligations relating to its protection
• Means and times of communication between the parties
• General and specific working conditions; in hybrid models, where necessary, the days to be spent at the workplace

Beyond this, it is advisable to include provisions on the return to the workplace, the obligation to be present at the workplace temporarily where operationally required, the procedure to be followed in the event of technical failures and the private use of IT equipment provided by the employer.

Who provides the work equipment and who bears the costs?

Unless otherwise agreed in the contract, the work equipment required for performance – in particular computers, software and communication technology – is provided by the employer. The employer gives the employee a written list of the work equipment provided, stating its value on the date of handover, and keeps the copy signed by the employee in the personnel file. Necessary expenses directly connected with the performance of the work – for example internet and communication costs – must be specified and the manner in which they are covered must be regulated in the contract. When making arrangements that place costs on the employee, the protective provisions of employment law must be taken into account. Under the Regulation, the necessary arrangements at the remote workplace must be completed before work begins, and the parties must jointly determine how the costs of these arrangements are to be covered. The parties' freedom to regulate this matter is, however, not unlimited. Under Article 414 of the Turkish Code of Obligations (Türk Borçlar Kanunu), agreements under which the necessary expenses required for the performance of the work are left wholly or partly to the employee are invalid. The written contract may provide for a daily, weekly or monthly lump-sum payment; this payment may not, however, be lower than the amount required to cover the necessary expenses.

How are working time and communication regulated?

Working time is set in the contract, generally within the maximum limits of 45 hours per week and 11 hours per day, without prejudice to shorter special limits that may apply depending on the nature of the work; changes require the agreement of the parties. In remote work, overtime is performed at the written request of the employer with the employee's consent and in accordance with the general rules on overtime. It is, as a rule, compensated by premium pay; if the employee so wishes, time off may be taken instead under the statutory conditions. For the employer, keeping reliable records of working hours, for example by means of time-tracking software or documented reporting procedures, remains indispensable in remote work; otherwise, the conduct of overtime disputes becomes more difficult. The communication times to be set in the contract also limit the expectation of availability outside working hours.

What obligations exist in the area of data protection?

The employer is obliged to inform the remote employee of the company rules and the relevant legislation on the protection of data relating to the workplace and the work performed, and to take the necessary technical and administrative measures. The employee is obliged to comply with these rules. In practice, such measures include VPN access, encryption, screen and access locks, rules on the use of personal devices and rules of conduct for working in public places. In the processing of personal data, the general obligations under Law No. 6698 on the Protection of Personal Data (KVKK) also continue to apply. Under the Regulation, the definition and scope of the data to be protected must be specified in the contract. Where work and performance are monitored by digital tools, an appropriate legal basis must be identified for the data processing, employees must be informed and the monitoring must be connected to its purpose, limited and proportionate.

What obligations exist in the area of occupational health and safety?

The employer's OHS responsibility under Occupational Health and Safety Law No. 6331 continues in remote work, but takes shape according to the nature of the work: taking the nature of the work into account, the employer must inform the employee about health and safety requirements, provide the necessary training, ensure health surveillance and take the necessary safety measures for the work equipment it provides. In practice, this includes in particular guidance on the ergonomic arrangement of the workspace at home and on work at display screens. Whether an accident occurring during remote work is an occupational accident is assessed in each specific case on the basis of the connection between the event and the work. Clearly defining and documenting the working time and place is therefore important. The assessment is made within the framework of the cases listed in Article 13 of Social Insurance and General Health Insurance Law No. 5510; not every accident at home automatically qualifies as an occupational accident.

For which work is remote work not permitted?

Certain work cannot be carried out remotely. Under the Regulation, remote work is not permitted for work involving dangerous chemical substances and radioactive substances, the processing of such substances or work with their waste, or work processes involving a risk of exposure to biological agents. For work performed through the procurement of services by public institutions and organisations, and for units, projects, facilities or services of strategic importance for national security, the responsible public institution or organisation, or the one procuring the service, determines in which of them remote work is not permitted. These restrictions are assessed with regard to the scope of the work; hybrid work may be possible for tasks that do not fall within the prohibition.

How does the transition between workplace-based work and remote work take place?

Existing work performed at the workplace may be converted into remote work by mutual agreement of the parties at the request of the employee or on the initiative of the employer. The employee's request is made in writing; the employer assesses it on the basis of the suitability of the work and of the employee for remote work and of other criteria to be determined by the employer, and notifies the result within 30 days in the same manner. As a rule, the employee has no unilateral right to remote work; conversely, the employer cannot unilaterally impose remote work either, owing to the procedure laid down in Article 22 of the Labour Law for material changes to working conditions. There is an important exception for extraordinary situations: where remote work is to be applied in all or part of the workplace for the compelling reasons specified in the legislation, the employee's separate consent is not required. A remote employee may also request a return to work at the workplace; under the Regulation, this request is given priority in the assessment. This priority does not mean that the employer is obliged to accept the request to return in every case.

What must be considered when working remotely from outside Turkey?

Where an employee works temporarily or permanently from another country for an employer in Turkey, this should not be assessed solely under Turkish employment law. The work and residence permit rules, mandatory employment law provisions, social security and wage taxation in the country where the work is actually performed, as well as permanent establishment and corporate income tax risks for the employer, must each be examined separately. Access to company systems from abroad and the disclosure of data to group companies or service providers abroad may, depending on the technical and organisational set-up, require a separate assessment as a transfer of data abroad under Article 9 of Law No. 6698. Concluding a supplementary agreement governed by Turkish law does not automatically eliminate the obligations arising in the country where the work is performed.

What applies with regard to the equal treatment of remote employees?

In remote work, employees may not be treated differently from a comparable employee solely because of the nature of their employment contract, unless there is a material reason for doing so. This principle covers not only remuneration and fringe benefits but also promotion and training opportunities. In practice, meal and transport allowances in particular may become the subject of disputes. Since whether, and to what extent, these payments continue during remote work depends on their contractual basis and purpose, this matter should be regulated expressly. In addition, a company-wide remote work policy is advisable that regulates application procedures, eligibility criteria, information technology and information security, availability and reimbursement of expenses in a uniform manner; in this way, individual disputes and equal treatment risks can be reduced.

Conclusion

Remote work offers employers and employees considerable flexibility, but this requires a careful contractual and organisational structure. In addition to a written contract containing the minimum content prescribed in the Regulation, clear arrangements should be made regarding work equipment, expenses and communication times; working hours should be recorded reliably, and data protection and OHS obligations should be applied consistently.

Companies that use remote work on a permanent basis should regularly review their practices and policies, in particular with regard to the implementation of hybrid models, the treatment of fringe benefits and the documentation of overtime and occupational accident risks.

GEMS Schindhelm advises companies on the introduction and legally compliant structuring of remote and hybrid working models, on the drafting of contracts and company policies and on the related data protection and OHS obligations. This article is for general information purposes only and does not constitute a legal opinion or legal advice; each dispute must be assessed separately in light of the specific circumstances of the case and the legislation in force.