EMPLOYER OBLIGATIONS IN REMOTE WORK
Legal Obligations, Supreme Court Decisions, and Points to Consider in Practice
Attorney & Mediator Fatih Mehmet TERCAN
info@tercanhukuk.com | 0532 511 84 02
1. INTRODUCTION
In a remote work relationship, the employer must fulfill their obligations from a different perspective since they cannot directly supervise the employee's physical work environment. The Labor Law No. 4857 and the Remote Work Regulation dated 10.03.2021 have imposed various responsibilities specific to this new working model on the employer. These responsibilities encompass many different areas such as the provision of equipment, occupational health and safety, data security, equal treatment, and expenses related to the working environment.
In this article, these obligations are discussed in light of legislative provisions and Supreme Court jurisprudence, and the points where employers frequently make mistakes in practice are emphasized.
2. OBLIGATION TO PROVIDE EQUIPMENT AND MATERIALS
2.1. Legal Framework Pursuant to Article 10 of the Remote Work Regulation, it is essential that the materials and work tools necessary for the remote worker to produce goods and services are provided by the employer unless otherwise agreed in the contract. The usage principles, as well as the maintenance and repair conditions of these materials and work tools, must be communicated to the remote worker clearly and understandably.
If the work tools are provided by the employer, a list of work tools showing their values on the date they were delivered to the employee must be submitted to the employee in writing by the employer. This list serves as a decisive piece of evidence in account disputes and in the matter of proving whether the work tools have been returned.
2.2. Expense Sharing and Mandatory Costs Pursuant to Article 414 of the Turkish Code of Obligations, if the employer employs the worker outside the workplace, they are obliged to pay all expenses arising from the performance of the work by the worker. In this context, mandatory expenses arising from remote work, such as increases in electricity and internet bills, must be covered by the employer.
In practice, many employers try to burden the employee with these expenses without reflecting them in the contract, a situation that lays the groundwork for serious disputes in the future. The parties clearly defining the expense sharing principles in the contract provides legal security for both sides.
3. OCCUPATIONAL HEALTH AND SAFETY OBLIGATIONS
3.1. Obligation of Information and Training Pursuant to Article 14 of the Labor Law and Article 12 of the Remote Work Regulation, the employer is obliged to inform the employee about occupational health and safety measures, provide the necessary training, ensure health surveillance, and take the necessary occupational safety measures regarding the equipment provided, taking into account the nature of the work performed by the remote worker. This obligation cannot be mitigated or eliminated in any way on the grounds that the remote work model has been adopted or that the employee is merely physically outside the workplace.
Fulfilling the information obligation in writing is of paramount importance in terms of ease of proof, especially in occupational accident disputes that may arise in the future.
3.2. Occupational Accidents in Remote Work and the Employer's Liability Accidents that occur during remote work can be qualified as occupational accidents in the presence of certain special conditions. These conditions are: The accident occurring within the working hours determined in writing by the parties; the accident occurring at the workplace specified in the contract; and the existence of an appropriate causal link between the work and the accident.
Determining the employer's liability arising from an occupational accident in a remote work environment depends on whether the workplace is clearly defined in the contract, whether the employee was actually performing work at that moment, and whether the employer took the necessary precautions against foreseeable risks.
4. EQUAL TREATMENT OBLIGATIONS
Article 14 of the Labor Law No. 4857 explicitly regulates: "In remote work, employees cannot be subjected to different treatment compared to a peer worker solely due to the nature of the employment contract, unless there is a substantial reason." This provision prohibits any practice against the remote worker in terms of all working conditions such as wages, social rights, training, promotion, annual leave, and dismissal.
Violation of the equal treatment obligation gives the employee the right to demand compensation and creates a basis for the use of the right to justified termination in various situations. Supreme Court jurisprudence has also stabilized in this direction; it has repeatedly confirmed that granting fewer rights to the remote worker compared to a peer worker is unlawful.
5. DATA SECURITY OBLIGATIONS
Article 9 of the Remote Work Regulation mandates that the employer determine the definition and scope of the data to be protected in the contract, inform the employee in detail about the protection and sharing of data related to the workplace and the work performed, and take the necessary technical and administrative measures. Obligations under Article 12 of the KVKK (Personal Data Protection Law) also create an additional layer of responsibility for the employer.
The primary data security measures that employers must implement in practice are as follows:
Establishing a VPN and secure access infrastructure and making it available to the employee.
Restricting personal devices' access to corporate data or determining technical security standards for these devices.
Implementing two-factor authentication systems.
Training employees at regular intervals on data security and personal data protection.
Creating an emergency action plan to be applied in the event of a data breach and announcing it to the employees.
6. WORKING HOURS AND SUPERVISION OBLIGATIONS
The employer is obliged to observe compliance with the remote worker's legal weekly working time of 45 hours. Although providing this supervision in a remote work environment is difficult, the legal obligation does not disappear. Pursuant to Article 8 of the Remote Work Regulation, changes regarding the employee's work organization, including the alteration of working hours, must be made in accordance with the relevant legislative provisions and reflected in the contract.
Consequently, the employer must clearly determine the working hours in the contract, regularly archive digital records (logs, access records, messaging transcripts), and only permit overtime by obtaining written consent.
7. CONCLUSION AND RECOMMENDATIONS
The employer's obligations within the scope of remote work regulate a broad area encompassing equipment provision, occupational health and safety, equal treatment, data security, and the supervision of working hours. Failure to fulfill these obligations can lead to severe compensation liabilities, administrative sanctions, and in some cases, penal sanctions.
The most common mistakes employers encounter in practice are: failure to issue a work tools list, failure to document and record that occupational health and safety training has been provided, failure to prepare data security protocols in writing, leaving working hours ambiguous in the contract, and unfair discrimination between the remote worker and the peer worker at the workplace.
To eliminate all these risks, it is recommended that employers prepare a comprehensive employment contract before transitioning to remote work, conduct an occupational health and safety risk assessment, establish data security policies in writing, and operate digital recording systems regularly.
The next article in this series will address worker rights in remote work.
BIBLIOGRAPHY
Labor Law No. 4857, art. 14 (Remote Work).
Remote Work Regulation, art. 8-12, Official Gazette dated 10.03.2021 and numbered 31419.
Turkish Code of Obligations No. 6098, art. 413-414.
Personal Data Protection Law (KVKK) No. 6698, art. 12.
Occupational Health and Safety Law No. 6331.
You can contact us for your questions regarding this article or your requests for legal consultancy on remote work law.
Atty. Med. Fatih Mehmet TERCANAttorney & Mediator
info@tercanhukuk.com | 0532 511 84 02