The labor markets have been disrupted by the COVID-19 pandemic globally and Turkey had its fair share of lockdowns, economic downturns, and unprecedented shifts in the business landscape. One of these structural changes in, and challenges for, the Turkish market is remote working.
Working from home was just an existing perk – usually a one-day-off incentive granted by some companies in Turkey before the pandemic. During the pandemic, it became a widespread work model, also evolving into a hybrid model, especially for people who are not necessarily required to work on site. And we clearly see that this structure is becoming permanent for increasingly more organizations in the post-pandemic future, as employees and employers witnessed its benefits – less commute, fewer office costs, and efficiency (though this one is a never-ending debate). Remote work has never been as high up on the business agenda as it is today, with the trickiest area both for local and international companies located in Turkey: employing foreign citizens in Turkey.
Legal Aspects of Remote Working in Turkey
From a legal aspect, remote working caught Turkey off-guard. The first legislative provisions regarding remote working in Turkish law were included in the labor law in 2016, with only a few clauses including the definition of remote working and one article on the content of its contract. And as the pandemic significantly accelerated the adoption of remote work, companies had to consider the financial costs and safe work environment of their remote workforce. Many questions arose in practice: Which costs of remote employees must be covered by the employer? Should transportation and meal allowances paid for on-site workers continue to be paid also for the remote workforce? What utilities and equipment should employers provide to remote employees? If an accident occurs during the working hours of a remote employee, will it be considered an “occupational accident”? Considering the principle of interpretation in favor of the employee in Turkish law, what will be the approach of the courts against malicious overtime pay demands?
While legal professionals were trying to answer these questions according to the provisions of the existing legislation, the Ministry of Family, Labor, and Social Services published a new regulation on remote working, which came into force on March 10, 2021.
This regulation covers all employees who work remotely under article 14 of the Turkish Labor Act. As per this regulation, many matters such as the costs arising from the arrangements of the workplace, the transition to remote work, and its duration depend on the mutual agreement between the employer and employee, while the employer still holds responsibilities such as informing the employee regarding the occupational health and safety measures, or providing the necessary training.
Open Questions and Remedies
Although the regulation eliminated some of the uncertainties, there are still many questions that will need clear answers – such as the legal consequences of remote working without a written remote working contract, the conditions of work accidents in the remote work model, the failure to agree on which expenses will be covered by the employer, the consequences of overtime work without the employer’s written request – not included in the regulation. Undoubtedly, as remote work is here to stay, the regulatory framework will need to revisit the fast-changing contours of the labor market.
To manage a smooth and compliant transition to remote work, it is essential for companies to: publish a procedure that includes the principles of remote working; make an additional protocol to the employment contract with the employee and reach an agreement on the transition to remote working; determine the occupational health and safety measures to be taken at home, together with occupational safety experts, and notify employees of these measures in writing; determine which utilities and equipment will be provided by the employer; not to request the employee work overtime; warn the employee in writing if they work overtime without the written request of their manager; and research the reasons for the need of overtime work.
The approach of Turkish courts to the legal problems arising from the remote work model will become clear as further court decisions are made in the future.
By Onur Kucuk, Managing Partner, and Cigdem Soysal, Senior Associate, KP Law