Legal Status Of Working Out Of Office By The Employees

The fact that nowadays it is possible for people to become mobile and to be able to perform their works and duties outside of the office with their technological devices brings about the alternative of “working outside office” for the employees.

Indeed, this practice, which is very common in Europe, enables the employees to work in certain time zones or permanently in self-motivating places, and the employer can save on costs because the office use is reduced.

We would like to address this practice within the frame of legal terms in this article since it is newly seen in Turkey.

I. In General Terms

The Article 14-4 of the Labor Law defines ‘working outside office’ as the work relationship establihsed in written format basin on the fulfillment of the work performance at the house or outside the office with the technological communication tools within the scope of the work organization created by the employer.

II. Legal Base

Article 14 of the Labor Law has been amended by the Law on Amendment of Turkish Employment Agency Law with the Labor Law No. 6715. With the aforementioned amendment, employees are allowed to perform their work performance from outside the working areas provided by the employer in the form of office, bureau, and factory or similar.

This legal situation was in fact clarified with the Home Work Agreement no. 177 by the International Labor Organization (“ILO”) and adopted in 1996. This application, which has been legalized by the type of contract entitled “Home Work Agreement” in the article 461 of the Turkish Code of Obligations no. 6098 entering into force in 2012, is also on the agenda in our country recently.

III. In Terms of Occupational Health and Safety

The most important issue that the employer should pay attention to in working outside office relationship is to inform the employee about the occupational health and safety measures, to give him/her the necessary training, to provide health supervision and to take the necessary safety measures related to the equipment provided. In particular, training and information should be given on the use and safety of the equipment delivered to the employee and this should be documented.

In addition, a regulation to be issued by the Ministry of Labor and Social Security for the works to be carried out remotely is specified in the relevant article, but no regulations have been issued since the amendment. As a result of our verbal interview with the Ministry, we learned that the regulation was prepared in July 2017 and planned to be put into effect shortly after the elimination of shortcomings.

IV. Insurance Status of the Employee Working outside Office

The employees working outside the office are also insured under the Social Security and General Health Insurance Law No. 5510. However, it will be determined by the regulation to be issued how the insurance registration of these employees will be, which personal rights will be provided and how these rights will be evaluated within the scope of Occupational Health and Safety Law No. 6331 (“Occupational Safety Law”).

Currently, the employer is obliged to make the insurance entry and the insurance premium payment for the employee working outside the office, as specified in paragraph 4(a) of the Insurance Law. In case of missing days, under the provisions of General Health Insurance (GSS) the premium amount of missing days will be covered by the employee working at home.

V. In terms of Occupational Accidents

Occupational accidents are defined as accidents and damages during work at work place or in related places. Although the definition of the workplace in the Occupational Safety Law is broad, the law does not define households or other areas as workplace for the employees working at home. For this reason, accidents and incidents as defined in the Occupational Safety Law shall not be defined as occupational accidents. Losses arising from these accidents as a natural consequence of not being defined as occupational accidents shall not be covered by the insurance fund established by the employer.

If the employee is working in the office and working at home for a short period of time; for the accidents occurring at home, the decision will be made considering its relation to work or the execution of the work. For example, the employer will be responsible if the employee, who will work at home one day a week, gets hurt as a result of the burning of the computer delivered to him by the employer at home. However, the employer cannot be held responsible if the person working at home is harmed by any action which has no connection to the expected work from him/her.

VI. Our Opinion

For employees to be employed from home, a separate contract with special provisions should be made and the working hours, wages and equipment to be delivered to the person working from home should be specified in the contract.

In our opinion, it would be more appropriate to carry out the practice of working from home after the regulation prepared by the Ministry of Labor and Social Security comes into force.

Att. Abide Birsen
Att. Akin Yucel

Yazar : Gulel Hukuk

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