Practice Area Articles
April 01, 2022
Batuhan Sahmay and Özlem Özdemir Yılmaz
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KEY DEVELOPMENTS FOR 2022
Introduction of the Remote Working Regulation
Remote working has greatly increased during the COVID-19 pandemic and although workplaces have resumed their activities, the number of employees working remotely has greatly increased and employers have started to adopt remote working where possible.
In March 2021, the Turkish Government published the Remote Working Regulation, which sets out employers’ and employees’ liabilities in relation to remote working. Employees and employers are now obligated to follow certain rules regarding remote working. The regulation does not allow remote work when working with hazardous chemicals and radioactive substances, the processing of these substances, working with the waste of these substances, or working processes that risk exposure to biological factors.
Employers must execute protocols/agreements with each employee and include the conditions for remote working (by including the mandatory provisions set out in the legislation) in the relevant protocol/agreement. The procedure detailed under the legislation regarding the transfer of the employee to remote working must also be followed.
KEY DEVELOPMENTS FOR 2021
Termination ban and unpaid leave without consent
Within the scope of the actions taken in light of COVID‑19, the Turkish Government implemented a termination ban.
In this respect, employees could not be terminated by employers until 17 March 2021, except for termination due to article 25/II of Labour Law (acts against ethics and goodwill) and some other exceptions (such as closing the workplace). This period may be increased by the President of Turkey.
In case employers terminate employees against the above provision, a fine in the amount of national minimum wage shall be applied for each case.
In addition, the employers are enabled by the Government to make their employees use unpaid leave (fully or partially) during the term of termination ban without any need to obtain the employees' consents.
Given the current circumstances, the Turkish Employment Agency has implemented short‑time working within the scope of a force majeure event having occurred due to periodic circumstances arising from external effects.
In this respect, an employer that wants to implement short‑time working must primarily inform the Agency (and the union that is party to the collective agreement, if any) in writing.
Usually, the Agency would make a determination of suitability following the relevant application by an employer; however, given the current pandemic, the Agency has stated that payments related to short‑time working can be performed in accordance with the declarations of the employers, without waiting for the completion of the determination of suitability. Overpayments and improper payments made due to the provision of wrongful information and documents by the employer will be collected from the employer along with interest.
Currently, the below timelines apply for short‑time working allowance:
- Workplaces that request to benefit from short‑term working from 1 January 2021 due to COVID‑19 will be able to benefit from the short‑time working allowance for three months, provided that they filed the relevant application before 31 January 2021, and
- Workplaces that applied for short‑time working allowance on and before December 31, 2020 will be able to benefit from short‑term working allowance until 28 February 2021.
Remote working and occupational health and safety implementations during remote working
Remote working has become more significant in Turkey during the COVID‑19 pandemic. As per Turkish Labour Law, if an employee works remotely, a written contract must be executed with such employee which must include (i) the definition of the work to be performed, (ii) information on how employee will perform his/her duties, (iii) salary and salary payment information, (iv) the equipment provided by the employer and information regarding their protection, (v) information on how the employer will communicate with the employee, and (vi) other employment terms.
If the relevant employee is already an employee of the employer and issues related to remote working are not regulated in his/her employment agreement, an additional protocol should be executed between the parties. Employees who work remotely cannot be treated differently from employees who do not, unless there is a just reason (e.g., a difference in seniority difference).
The employer is obliged to (i) inform the employee of the relevant precautions regarding health and safety by taking the duties to be performed by the employee into consideration, (ii) train employee in this respect, (iii) provide health and safety supervision, and (iv) take health and safety precautions regarding the equipment provided by the employer.
It is also stipulated in the Labour Law that further details regarding remote working, the sectors in which remote working is not permitted, data protection regarding remote working and other matters will be stipulated in a regulation to be issued at a later date. In the light of this, when the regulation is issued, there might be further restrictions and obligations regarding remote working; however this regulation has not been issued yet.
Occupational Health and Safety during remote working
If an accident occurs while an employee is working remotely, this accident can be considered as occupational accident and the employer's liability might arise due to such accident as though it occurred in the employer's workplace. If the accident is not related to the work or duties of the employee (e.g., if the employee fell in his/her house and broke his/her leg while cleaning the house), the accident will not be deemed as an occupational accident.
Note that even if it is stipulated in the relevant agreement/protocol that the employer will not be liable for workplace accidents that occur during remote working, the potential liability of the employer mentioned above will not change (and therefore such provision in an agreement will not be valid).
Although there are no clear provisions within the legislation in this respect, as a general principle, the employer will be responsible for the safety of the work environment and equipment.
KEY DEVELOPMENTS FOR 2020
Termination Ban and Unpaid Leave without consent
In light of the ongoing COVID-19 pandemic, the Turkish Government has implemented a termination ban prohibiting employers from dismissing employees, except in cases of violations of the rules of ethics and goodwill. The termination ban was set to expire on 17 November 2020, but has recently been extended until 17 January 2021.
Employers are subject to an administrative penalty of the national minimum wage per employee if they fail to comply with this prohibition. In addition, employers may ask their employees to take unpaid leave (fully or partially) during the term of the termination ban without the need to obtain employees' consent. These employees will receive salary support amounting to TRY 39.24 per day from the Government while they are on unpaid leave or are unemployed for the periods of the termination ban. This salary support is also available to employees whose employment agreements have been terminated after 15 March 2020, and who cannot benefit from unemployment insurance benefits.
Short-Time Work Allowance
The Turkish Employment Agency has implemented short-time working, giving employers the right to apply for a short-time work allowance to fight the economic effects of the COVID-19 pandemic. The short-time work allowance is a means to provide employees with income support to be paid from the unemployment fund if and when their working hours are decreased by one third of their ordinary working hours, or the operations of a work place have been wholly or partially suspended due to a force majeure event.
Employers wanting to implement short-time working on the grounds of compelling reasons arising out of COVID-19 must inform the Turkish Employment Agency (and the trade union at the workplace, if any) in writing. In normal circumstances, the Turkish Employment Agency would then make a determination of suitability once the application has been received. However, in light of the ongoing COVID-19 pandemic, the Turkish Employment Agency has stated that the payment for the short-time work allowance will be made without the need for a determination of suitability (although the employer will be liable to make a reimbursement if wrongful information and/or documents are provided).
The term of the short-time working allowance was set to expire on 30 June 2020, but this has recently been extended until 31 December 2020.
KEY DEVELOPMENTS FOR 2019
New law on the protection of personal data
The Law on Protection of Personal Data came into force on April 2018. It imposes various obligations on data controllers (e.g. employers) to inform data subjects, obtain consent where necessary, impose necessary precautions, implement data protection related policies and register with the data controller registry. Most of the data controllers will need to be registered at the data controller registry by 30 September 2019. Non-compliance with the law could result in an administrative fine between TRY 5.000 – 1.000.000. There could also be criminal liability as per Turkish Criminal Code.