Remote working means that the obligation to perform work is discharged outside the boundaries of the workplace, most often at the employee’s home or at another location designated by the employer. Hybrid working, for its part, describes a mixed arrangement in which part of the week is spent at the workplace and the remainder is spent working remotely.
Although these models promise flexibility and efficiency, they have given rise to new subjects of debate in employment law. In practice the greatest number of disputes concentrate on how working hours are to be determined, by what records overtime is to be established, how occupational health and safety duties are to be carried beyond the workplace, the protection of data and the monitoring of the employee. For that reason, determining the rights and obligations of the parties in a manner that leaves no room for hesitation is decisive in preventing loss of entitlement on the employee’s side and legal risk on the employer’s side.
In this briefing note we examine remote and hybrid working arrangements in detail, in the light of practice and judicial decisions, along the axis of the rights and duties of the parties and, in particular, overtime practices.
The Concepts of Remote and Hybrid Working
Both models are flexible arrangements based on the obligation to perform work being discharged wholly or partly outside the workplace. The spread of these arrangements has made it necessary to reconsider a great many legal headings, such as the determination of working hours, overtime practices, occupational health and safety duties, data security and monitoring.
Definition and Nature of Remote Working
The statutory definition of the concept is found in Article 14 of Labour Act No. 4857:
Labour Act No. 4857, Art. 14
“The performance by the employee of the obligation to work, within the scope of the work organisation established by the employer, at home or outside the workplace by means of technological communication tools”
Accordingly, remote working is a form of working that rests on an employment contract, in which the obligation is performed outside the workplace and the employer’s right of management is maintained through technological tools.
In this relationship the constitutive elements of the contract — wages, the obligation to perform work and subordination — retain their existence as they are; the only thing that changes is the place where the obligation is performed. A remote worker therefore retains the classic status of an employee for the purposes of employment law and continues to benefit from all rights such as wages, overtime, annual leave and job security.
Definition and Features of the Hybrid Model
The hybrid arrangement is a mixed system in which the employee works at the workplace on certain days of the week and remotely on the remaining days.
Although Turkish employment law contains no express statutory definition of this model, it has been widely adopted in practice; the assessment is made by applying together the general principles of employment law and the provisions concerning remote working.
The distinguishing feature of the model is that the place of performance changes from period to period. Within a single employment relationship the employee sometimes discharges the obligation in the workplace environment and sometimes remotely.
In this structure it is important for the sound conduct of the relationship that it be determined expressly and in writing which days are to be spent at the workplace and which remotely.
Rights of the Remote and Hybrid Employee
A change in the place of performance does not affect the essential elements of the contract or the employee’s legal position. Accordingly, a person working under a remote or hybrid arrangement has, for the purposes of Labour Act No. 4857, the same rights as a colleague working at the workplace.
Nevertheless, the difference in the arrangement gives rise to significant debate in practice as regards the exercise and, in particular, the proof of certain rights. The rights that come to the fore in this framework are examined below.
Wages and Fringe Benefits
Whether the work is carried out remotely or on a hybrid basis makes no difference as regards the right to wages; the employee becomes entitled to the wage agreed in the contract in full.
It is unlawful for the employer to reduce wages on the ground of remote working, or to withdraw unilaterally fringe benefits such as meal allowances, travel assistance or bonuses. Wages and benefits in the nature of wage supplements are among the essential elements of the contract; a change to the employee’s detriment is possible only with written approval.
That said, how items such as meal and travel assistance are to be applied during a period of remote working must be assessed separately in the light of the employment contract and workplace practices.
The Right to Overtime Pay
Where the statutory working periods are exceeded, a remote or hybrid employee likewise becomes entitled to overtime pay. The fact that the work is being carried out from home does not extinguish that right.
The real difficulty emerges at the stage of proof. Since there are no classic entry and exit records, the existence of overtime is most often established through digital traces.
In this respect employer instructions and task records, email traffic, log data showing entry to and exit from systems, and correspondence on messaging platforms such as WhatsApp, Teams and Slack may prove decisive as regards proof.
It is accepted that work carried out with the employer’s knowledge and at its direction must be counted as overtime; keeping the employee continuously available, or compelling them to work outside working hours, may also be assessed within this scope.
For further detail on the subject, our note entitled Claims for Overtime Pay may be consulted.
Provision of Equipment and Bearing of Costs
In a remote working relationship it falls, as a rule, to the employer to provide the tools required for the work to be carried out (computers, software, communication devices and so on) and to meet the costs arising from the conduct of the work (internet, electricity and so on).
Indeed, the Remote Working Regulation provides that the parties are to determine expressly who is to supply the materials and work tools needed for the work to be done, and how they are to be used.
Even where the employee uses their own devices, who is to bear the resulting cost must be recorded in the contract. Where this is not done, compelling personnel to work using their own resources may give rise to unlawful consequences.
Benefiting from Job Security
A remote or hybrid arrangement does not cause the employee any loss as regards job security. The employee benefits in full from the job security provisions in Articles 18 et seq. of Labour Act No. 4857.
Accordingly, it is unlawful for the employer to bring the contract to an end on the pretext of the move to a remote working arrangement, unless the termination rests on a valid reason.
In terminations founded on reduced productivity, difficulty of supervision or communication failures in particular, the employer must establish those assertions with concrete and objective evidence. Otherwise the termination may be regarded as invalid and the employee may bring an action seeking reinstatement.
For further detail on the subject, our notes entitled The Reinstatement Action and What Is Job Security? may be consulted.
Legal Obligations of the Employer
Even though the place of performance has changed, the employer’s duties arising from the contract and from the legislation continue unchanged. The fact that the work is carried out outside the workplace cannot be made a ground for narrowing or wholly removing its responsibilities.
The obligations that come to the fore in this context are examined below.
The Occupational Health and Safety Duty
Occupational Health and Safety Act No. 6331 places the employer under an obligation to ensure the health and safety of employees. That duty continues to exist in the case of remote working as well.
The fact that the work is carried out outside the workplace does, however, make it more difficult to draw the boundaries of that responsibility. The employer is therefore expected to carry out a risk assessment appropriate to the nature of the work, to give the employee the necessary occupational health and safety training, and to ensure the safety of the equipment used. At the same time, given the limited scope for supervision over the employee’s home, the employer’s responsibility is assessed according to the circumstances of the particular case, and unlimited responsibility cannot be spoken of in every instance.
Data Security and Duties Under the KVKK
In these working models data security constitutes one of the highest-risk areas from the employer’s point of view.
Under Personal Data Protection Act No. 6698 (KVKK) the employer must ensure that personal data are processed lawfully, prevent unauthorised access and take the technical and administrative measures necessary to that end. Since security is harder to ensure in a remote working environment, it is of great importance that personnel be given data security training, that a secure access infrastructure be established and that measures be taken against breaches.
Otherwise, data breaches that may occur can give rise both to administrative fines and to liability in damages.
Monitoring of the Employee and Its Limits
The right of management confers on the employer the power to monitor the employee. That power is not, however, unlimited under a remote working arrangement.
Monitoring must be exercised having regard to the principles of proportionality and good faith and to the privacy of the employee’s private life and the protection of their personal data. Continuous surveillance, monitoring by camera, or methods that may be regarded as an interference with a person’s intimate sphere may amount to unlawfulness.
For that reason the methods to be resorted to must remain transparent, intelligible and proportionate, and should so far as possible be set out in advance in the employment contract or in workplace policies.
Supplying Equipment and Bearing the Expenses
In a remote working relationship the provision of the tools and equipment needed for performance of the work belongs, as a rule, to the employer.
In this framework the employer must supply computers, software and technical hardware, establish the necessary communication infrastructure and bear the expenses that are indispensable for the conduct of the work. The parties may agree that the employee is to use their own equipment; in that case, however, how the resulting costs are to be met must be expressly regulated.
Otherwise, compelling the employee to work using their own resources may result in the employer being in breach of its obligations.
Obligations of the Employee
The fact that the obligation is discharged outside the workplace does not extinguish the obligations arising from the employment contract. Even though the place of performance has changed, the employee remains bound to perform their obligations towards the employer in the same manner.
The principal duties in this context are set out below.
The Obligation to Perform Work
The employee must perform the work undertaken under the contract with due care and in good time. Remote working cannot be construed as an area of freedom that suspends work discipline.
The employee is expected to observe the working hours laid down, to complete the tasks assigned in full and to take an effective part in the work organisation.
Loyalty and Non-Competition
The employee is obliged to have regard to the employer’s interests and to refrain from conduct capable of causing it harm. In this framework the employer’s trade secrets must be protected, information belonging to the employer must not be passed on to third parties, and activities of a competing nature must be avoided. The greater ease of access to data in remote working attaches far more serious consequences to a breach of this obligation.
For further detail on the subject, our note entitled Non-Competition Between Employee and Employer may be consulted.
The Data Security Duty
The employee is expected to act in accordance with the data security rules in force at the workplace and to protect the information and documents entrusted to them.
In this context the employee is expected to prevent unauthorised access to company systems, to protect passwords and access details, and to ensure the security of personal data. Breaches of data security in a remote working environment are capable of giving rise not only to termination of the employment contract but also to civil and criminal liability.
Compliance with Employer Instructions
The employee must act in accordance with the instructions given within the scope of the right of management. Those instructions may concern the systems used, the communication channels, the working hours and the manner in which the work is conducted.
Contrary to the widespread perception that a remote worker is “independent”, the employee continues to form part of the employer’s organisation; conduct contrary to instructions may lead to disciplinary sanctions and even to termination of the contract.
Working Hours and the Problem of Monitoring
Foremost among the headings that give rise to the greatest number of disputes in these models are the determination of working hours and the limits of the power of monitoring. The fact that the work is carried out outside the workplace makes it harder to apply the classic working-hours regime, and that creates uncertainty for both parties.
It is therefore of great importance that working hours be fixed with a clarity that leaves no room for hesitation, and that methods of monitoring be exercised within the limits drawn by the law.
How Working Hours Are Determined
Under remote and hybrid arrangements too, the rule as regards working periods is the application of the general periods in Labour Act No. 4857. Accordingly, the weekly period is at most 45 hours and, unless otherwise agreed, is applied by being divided equally over the days of the week.
The parties may fix working hours more flexibly. That flexibility cannot, however, be used in a way that extinguishes the employee’s right to rest, gives rise to a workload whose boundaries are undrawn, or keeps the person permanently in a working state.
In this framework, fixing working hours expressly by the employment contract or by workplace policies and making clear the starting and finishing times is decisive in preventing disputes that may arise later.
Limits of the Employer’s Power of Monitoring
The employer may monitor the working arrangement within the framework of the right of management arising from the contract. That power is, however, not unlimited as regards remote working either.
In exercising that power the principle of proportionality must be adhered to, the duties relating to the protection of personal data must be fulfilled, and the privacy of the employee’s private life must not be impaired.
In this respect keeping the home under continuous surveillance, monitoring by means of a camera, or practices that may be regarded as an interference with the intimate sphere may give rise to unlawful consequences.
In exercising its power of monitoring the employer must act transparently, determine in advance the methods to which it will resort, and inform the employee.
Is an Expectation of Being Permanently Online Lawful?
One of the problems frequently encountered in practice is the expectation that the employee be continuously available even outside working hours.
Being compelled to remain online outside the hours agreed impairs the right to rest on the one hand and may, on the other, lead to that period of time being counted as overtime.
Under the fundamental principles of employment law the employee’s right to rest must be protected and being reachable outside working hours must not be made compulsory; an expectation of uninterrupted availability may implicitly acquire the character of overtime.
An employer that requires its personnel to remain permanently available after working hours have ended must therefore be regarded as having assumed a legal risk.
Overtime Disputes: Proof, Calculation and Litigation
Foremost among the most debated issues in this model are the existence and the proof of overtime. The fact that the work is carried out outside the workplace, the absence of timekeeping records and the flexibility of working hours make it harder to establish.
The following point must nevertheless be emphasised: the fact that the obligation is performed remotely does not produce the effect of extinguishing the right to overtime pay. A person who works beyond the statutory period with the employer’s knowledge and on its instruction continues to be entitled to overtime pay.
Proof of Overtime
In remote working, proof proceeds predominantly by way of digital evidence compared with workplace practices.
In this context task assignment and project management records, employer instructions and reporting systems, log data showing entry to and exit from systems, email correspondence and messaging via WhatsApp, Teams and Slack play an important role.
The practice of the Court of Cassation is likewise to the effect that work of which the employer is aware and which shows continuity must be accepted as overtime.
Digital records showing that work was actually carried out, or that the employee was compelled to work, outside normal working hours in particular carry strong evidential value as regards proof.
Principles of Calculation
For the purposes of Labour Act No. 4857, work exceeding 45 hours per week is accepted as overtime; the amount payable is found by increasing the normal hourly wage by 50%.
When the calculation is made under a remote working arrangement, the actual working time is taken as the basis, whether the employer’s instruction or approval was present is investigated, and the continuity and intensity of the work are taken into account.
An expectation of uninterrupted availability, work carried out at weekends and correspondence outside working hours may also be included in that calculation.
Evidential Value of Payslips and the Burden of Proof
In disputes over claims for overtime pay the burden of proof lies, as a rule, with the employee. The employer is, however, also under an obligation to keep records of working periods.
Payslips that are signed and bear no reservation are, as a rule, regarded as conclusive evidence; an assertion that the payslip does not reflect the true position may nevertheless be established by written evidence. Where the payslip is unsigned or contains a reservation, that assertion may be proved by any kind of evidence.
It is accepted that in remote working, reliance on the payslip alone is not regarded as sufficient and that witness statements and digital data must be weighed together.
The Overtime Action and Points to Be Observed
In order to recover claims for overtime pay based on remote working, the employee must bring an action before the Labour Court.
In this process it is of great importance that digital evidence be preserved and submitted to the case file, that the working arrangement be established concretely and that the employer’s instructions be proved. In practice the distinction between work done by the employee on their own initiative and work carried out in accordance with the employer’s instruction is examined with particular care; only work done with the employer’s knowledge and at its direction is assessed as falling within the scope of overtime.
The Employer’s Right of Termination for Just Cause in Overtime Disputes
Disputes in this area are not confined to the employee’s claims for payment; in some situations they also raise grounds for termination for just cause on the employer’s part.
Indeed, conduct such as failing to perform the obligation to work during working hours, artificially inflating working periods, producing records suggesting that overtime was worked when in fact no work was done, or asserting overtime in the absence of the employer’s knowledge and direction, is capable of impairing the relationship of trust. In such situations the employee’s conduct may constitute a breach of the rules of morality and good faith within the scope of Art. 25(II) of Labour Act No. 4857, and, according to the features of the particular case, the employer’s right of immediate termination may arise.
The difficulty of monitoring actual working time in remote working in particular increases the weight of the duties of honesty and loyalty; where that duty is breached, the employer’s right of termination arises the more strongly.
It must nevertheless not be overlooked that in such terminations the employer must prove its assertions with concrete and objective evidence, failing which the termination may be regarded as wrongful or invalid.
Conclusion
While remote and hybrid working arrangements have brought about a fundamental transformation in working life, they have also brought with them significant legal uncertainty and a risk of disputes.
Under these arrangements the employee’s rights and the employer’s duties are in essence preserved; overtime, working hours, monitoring and data security nevertheless stand out as the areas that generate the greatest number of disputes in practice.
It is therefore of great importance that the relationship be governed by clear, written and verifiable rules, both to prevent loss of entitlement on the employee’s side and to manage legal risk on the employer’s side.
Independent Legal Assessment
In the great majority of actions arising from remote and hybrid working, the debate turns not on the existence of the right but on the evidential material. Where the starting and finishing times of work have not been recorded in a written text, even a single message sent by the employee in the evening may, years later, become the foundation of an overtime claim. Conversely, if the monitoring mechanism established by the employer is disproportionate, a separate liability then arises along the axis of the protection of personal data. Legal certainty in these models therefore depends on the contractual text and workplace policies being designed together.
When a particular remote or hybrid working arrangement is being designed, the following headings should be given priority:
- Expressly limiting in the contract the starting and finishing times of work and the expectation of availability
- Establishing an approval flow providing that overtime may be worked only with prior written approval
- Including a concrete provision on the supply of equipment and on how expenses such as internet and electricity are to be met
- Determining the scope of monitoring tools, the retention periods and the privacy notice in a manner compliant with the KVKK
- Documenting the risk assessment relating to the place of remote work and the occupational health and safety training
- Archiving log records and messaging data in a manner that preserves their evidential value in any dispute
Independent Legal provides advisory services in employment law matters, from establishing the contractual framework of remote and hybrid working models through to the pursuit before the courts of overtime and termination disputes.