The Employer’s Right To Manage And Supervise Remote Work: Legal Limits And New Areas Of Risk

I. Introduction

Developments in information and communication technologies have led to significant transformations in working life; in particular, following the COVID-19 pandemic, the remote working model has become a widespread form of employment. The ability to carry out work without being tied to a specific location provides cost advantages and flexibility for employers, whilst also offering employees various opportunities in terms of time management and work-life balance. However, remote working has led to the transfer of the management and supervisory powers traditionally exercised by employers in the workplace to the digital environment; this has raised new legal debates regarding the privacy of employees’ personal lives, the protection of their personal data and the safeguarding of their fundamental rights.

Under Turkish law, remote working is regulated by Article 14 of the Labour Code No. 4857; details regarding its implementation are set out in the Remote Working Regulation dated 10 March 2021. These regulations aim to safeguard the employer’s right to manage whilst also ensuring that the employee’s personal rights and working conditions are protected.

In this study, the concept of remote working will be explained; the scope of the employer’s right to management and supervision, along with the legal limits of these rights, will be examined; and the new areas of risk arising from digital surveillance practices will be assessed.

II. The Legal Nature of Remote Working

Under Article 14 of the Labour Act No. 4857, remote working is an employment relationship established in writing, whereby an employee performs their work duties at home or outside the workplace via technological means of communication, within the framework of the work organisation established by the employer. This definition makes it clear that remote working is not a form of self-employment, but rather a different manifestation of a dependent employment relationship based on an employment contract.

The Act requires that a remote working contract be drawn up in writing; it stipulates that the contract must clearly set out the job description, working hours and location, remuneration, the method of payment, equipment provided by the employer, obligations regarding the safeguarding of such equipment, communication procedures, and general and specific working conditions. The aim is to prevent any disputes that may arise between the parties.

However, whilst an employment relationship may be established directly through a remote working contract, the employment contract of employees currently working on-site may also be converted into a remote working contract, provided both the employee and the employer agree. As a general rule, the transition to remote working   constitutes a substantial change in working conditions and, pursuant to Article 22 of the Labour Code, is subject to the employee’s written consent. However, Article 14/6 of the Remote Working Regulation provides for an exception to this rule, stipulating that where remote working is implemented across the entire workplace or a part thereof for compelling reasons, the employee’s request or consent need not be sought.

The Remote Working Regulation also sets out the provisions of the Act in detail and establishes the procedures and principles governing the establishment, implementation and termination of remote working. Whilst Article 5 of the Regulations sets out the content of the contract in detail, Articles 6 to 10 contain provisions regarding the organisation of the workplace, the provision of work equipment, the coverage of production costs, the determination of working hours and communication procedures.

III. The Employer’s Right of Management and Its Impact on Remote Working

Article 8 of the Labour Code defines an employment contract as a contract whereby one party undertakes to perform work in a subordinate capacity, whilst the other party undertakes to pay wages. Based on this definition, it is accepted that an employment contract consists of three fundamental elements: the performance of work, wages and subordination. Of these elements, the most defining feature that distinguishes an employment contract from other contracts for the performance of work is legal subordination. The employee’s work under the employer’s direction entails the employer’s authority to issue orders and instructions regarding the performance of the work, to organise the work, and to supervise its execution. In other words, the relationship of subordination inherent in the employment contract forms the legal basis for the employer’s right of management.

However, in the remote working model, the fact that the work is carried out outside the employer’s premises—most often at the employee’s home or via technological communication tools—alters the nature of the element of subordination in the traditional employment relationship. The increase in physical distance between the employer and the employee limits the employer’s ability to directly supervise the performance of the work and issue immediate instructions; consequently, the manner in which managerial authority is exercised also differs.

However, the weakening of the element of subordination does not mean that the employer-employee relationship between the parties has ceased to exist. On the contrary, alongside the digital transformation in the world of work, the spread of flexible working arrangements and the development of atypical employment models, the concept of subordination is being reinterpreted to adapt to new working conditions. Within this framework, according to an approach that is gaining increasing acceptance in legal scholarship, the fact that the employee performs work within the employer’s organisational structure and for the employer’s benefit is becoming an important supplementary criterion in determining legal subordination. Consequently, subordination today is no longer explained solely by the fact of working under the employer’s physical supervision; the worker’s inclusion in the organisation established by the employer and their carrying out of activities in line with the organisation’s objectives are also regarded as key indicators of the relationship of subordination.

The changing nature of the element of dependency has also directly affected the employer’s exercise of their rights to management, control and supervision. Thanks to technological developments, employers have begun to utilise digital monitoring tools in place of physical supervision; thus, whilst the right to management has not ceased to exist, it has begun to be exercised through different methods. This situation has made it possible, particularly in the context of remote working, for the employer’s right of supervision to be exercised via electronic communication tools and digital platforms. However, this capacity for supervision afforded by technological advancements has, in some cases, given rise to new legal debates regarding the protection of employees’ private lives and personal data.

Indeed, in a remote working arrangement, the employer’s right to manage encompasses determining working hours, allocating tasks, establishing performance criteria, issuing instructions regarding the performance of the work, ensuring information security, and implementing the technical arrangements required by the work. The employer may exercise these powers through digital communication tools, online meetings, electronic reporting systems, corporate software and similar technological tools. However, when exercising this authority, it is essential to strike a fair balance between the employer’s management rights and the employee’s personal rights, the right to privacy and the protection of personal data. Therefore, when assessing the scope of management rights in remote working, consideration must be given not only to the employer’s operational interests but also to the employee’s fundamental rights and freedoms.

IV. The Right to Supervision in Remote Working

The employer’s right to supervision is an integral extension of the right to manage and serves to monitor whether the obligation to perform work arising from the employment contract is being fulfilled as required. The employer may resort to certain monitoring mechanisms with the aim of ensuring the efficient operation of the business, maintaining work discipline, safeguarding data security and enhancing the effectiveness of the work organisation. In particular, with the increasing prevalence of the remote working model, traditional monitoring methods based on physical supervision have largely been replaced by digital monitoring tools.

Nowadays, employers are able to monitor company computers, email accounts, internet access and other IT systems allocated to employees, within the scope of their powers arising from management and ownership rights. In this context, monitoring corporate email traffic, reviewing VPN and system access logs, analysing usage data from company computers, recording online meeting platforms, or evaluating performance data via project management software are among the standard forms of an employer’s right to supervision. In addition, employers may impose various restrictions on the use of computers, the internet and electronic communication tools with the aim of preventing cyberloafing, ensuring information security, blocking access to malicious software and content, ensuring the efficient use of company resources and preventing financial loss. However, the increasing monitoring capabilities afforded by technological developments have made it necessary to reassess the scope of the employer’s right to monitor.

Whilst remote working does indeed offer technological possibilities that extend the employer’s right to supervise, this does not mean that the employer has unlimited powers of surveillance. Practices such as regularly taking screenshots, requiring the employee’s camera or microphone to be kept switched on at all times, recording keyboard and mouse movements, continuously monitoring location data, or keeping the employee’s home environment under constant surveillance may exceed the limits of the employer’s management rights and constitute a disproportionate interference with the employee’s right to privacy and personal rights. Particularly with regard to the inviolability of the home and the protection of private life, as remote working leads to a blurring of the boundaries between the workplace and the private sphere , the legal limits of surveillance activities must be assessed with greater care.

Consequently, for any monitoring activity carried out by an employer to be considered lawful, it must, first and foremost, be based on a legitimate purpose; it must be necessary and appropriate for the performance of the work; there must be a reasonable balance between the intended purpose and the monitoring method used; and it must be implemented in accordance with the principle of proportionality. Furthermore, it is a requirement of the principle of transparency that employees are informed in advance, in a clear and comprehensible manner, regarding which of their data will be processed, by what methods, for what purpose, and for how long. The scope of monitoring activities must not exceed what is required by the nature of the work; nor must it restrict the employee’s fundamental rights and freedoms in an unnecessary or disproportionate manner.

There is no comprehensive or specific legal framework in Turkish law governing the monitoring of employees’ electronic communications and digital activities. Indeed, there are no detailed provisions specific to this matter in either the Labour Code No. 4857, the Remote Working Regulation, or the Personal Data Protection Act No. 6698. Similarly, to date, the Personal Data Protection Board has not issued any decision of a principled nature directly addressing electronic monitoring practices in the context of remote working. Consequently, the lawfulness and limits of an employer’s monitoring authority are determined in the light of the general principles of existing legislation and judicial precedents.

When making an assessment within this framework, Articles 20 and 22 of the Constitution, which guarantee the right to privacy and freedom of communication, Article 8 of the European Convention on Human Rights concerning the protection of private life and communications, and Article 10 governing freedom of expression, the provisions of the Turkish Civil Code concerning the protection of personal rights, the principle of worker protection under labour law, and the fundamental principles regarding the protection of personal data are all taken into account.

Consequently, whilst the employer’s right to supervision under the remote working model is necessary for the continuation of the employment relationship, this right is not unlimited in nature. It is essential to strike a fair balance between the employer’s business interests and the employee’s right to privacy, the protection of their personal data and other fundamental rights. This balance can only be achieved by adopting a supervision policy that complies with the principles of legality, necessity, proportionality, transparency and accountability.

V. The Employer’s Obligations under the Remote Working Regulations

The Remote Working Regulations not only govern the employer’s right to manage but also impose significant obligations.

In accordance with Article 7 of the Regulations, unless otherwise agreed in the employment contract, the employer is generally required to provide the tools and equipment necessary for the performance of the work. The rules governing the use of the equipment provided, as well as the conditions for its maintenance and repair, must be communicated to the employee in a clear and comprehensible manner.

Article 8 of the Regulations, meanwhile, requires that the principles governing the coverage of necessary production costs arising from the conduct of remote working be clearly set out in the contract.

Article 9 of the Regulation is significant in terms of working hours. According to this, the time period during which remote work is to be carried out and the working hours must be specified in the contract; overtime may only be carried out upon the employer’s written request and the employee’s consent. Furthermore, Article 10 of the Regulation stipulates that the method and timing of communication during remote working shall be determined by the remote worker and the employer. These provisions aim to prevent uncertainty regarding working hours and the method and timing of communication between the employee and the employer in the context of remote working.

VI. Data Protection and the Privacy of the Employee’s Private Life

One of the most significant legal issues in remote working is the protection of personal data. Article 11 of the Regulation imposes an obligation on the employer to inform employees about data security and to take the necessary technical and organisational measures. Furthermore, it provides that the scope of the data to be protected must be specified in the contract.

An employer may establish certain control mechanisms to ensure information security. However, this authority does not confer the right to subject an employee’s private life to constant surveillance. In particular, monitoring an employee’s home via CCTV or carrying out digital surveillance activities outside working hours may constitute a breach of the right to privacy.

For this reason, it is essential that the employer’s data processing activities are carried out in accordance with the principles of lawfulness, specific and legitimate purposes, data minimisation, proportionality and transparency.

VII. The Employer’s Responsibilities Regarding Health and Safety at Work

The employer’s duty of care is not limited solely to supervising the work. Pursuant to Article 14 of the Labour Code and Article 12 of the Remote Working Regulations, the employer is obliged to inform remote workers about health and safety at work, provide the necessary training, ensure health monitoring, and take measures regarding the safe use of the equipment provided.

This obligation demonstrates that remote working does not remove the employer’s duty to protect the employee. The fact that an employee works from home does not terminate the employer’s responsibility for health and safety at work; it merely alters the manner in which this responsibility is exercised.

VIII. New Areas of Risk

The remote working model has given rise not only to traditional employment law issues but also to new areas of legal risk. Foremost among these is the increasing prevalence of digital surveillance practices. Whilst artificial intelligence-powered performance appraisal systems, algorithmic management practices and automated employee monitoring software enhance productivity for employers, they increase the risks of privacy breaches, discrimination and psychological pressure for employees.

Another significant issue is the blurring of working hours. The expectation that employees should be constantly online can lead to the blurring of the line between overtime and rest periods . This situation can have adverse consequences for employees’ right to rest and their work-life balance.

Furthermore, issues such as cyber security risks, the security of remote access systems, the protection of company data and the use of personal devices for work purposes are giving rise to new legal debates at the intersection of employment law and data protection law.

IX. Conclusion

Remote working is one of the most significant examples of how technological developments have shaped working life. Under Turkish law, Article 14 of the Labour Code No. 4857 and the Remote Working Regulations set out the legal framework for remote working, with the aim of safeguarding both the employer’s right to manage and the employee’s rights.

Whilst the employer continues to exercise their rights of management and supervision in a remote working arrangement, these powers are not absolute. The right of management must be exercised in accordance with the principles of good faith, proportionality, equal treatment and respect for personal rights. Particularly in today’s world, where digital surveillance technologies are becoming increasingly widespread, it is of the utmost importance to strike a fair balance between the employer’s right of supervision and the employee’s right to privacy.

Whilst current regulations set out the fundamental principles governing remote working, it is considered that more detailed legal provisions and judicial precedents are required in light of new practices such as AI-supported surveillance systems, algorithmic performance assessments and continuous digital monitoring. Consequently, it appears inevitable that the legal framework for remote working will need to be reshaped in the future, taking into account technological developments and the fundamental rights of workers.

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