The global pandemic has dramatically altered work practices, and
many of these changes are expected to be long lasting. One such
practice is remote working. The increasing popularity and need for
remote working, particularly in the last two years, has been
noticed by the authorities leading to numerous new regulations.
Considering that digitalization and becoming part of an online
network is inevitable, the rapid uptake of remote working by
white-collar employees and their adaptation to this system has made
their transformation into “digital-collar employees”
unavoidable.
The rapid shift, which started with the positive aspects of
remote working for employers and employees, has left its mark on an
environment where negative impacts including ethical, legal, and
employment-related difficulties are also evident. One negative
consequence is the disappearance of the distinction between work
and private life, and the uncertainty surrounding working hours
that has grown into a significant problem for employees. To prevent
this situation, a remarkable concept, the “right to
disconnect”, has been offered as a solution.
What Is the Right To Disconnect? Why Should It Be
Regulated?
The right to disconnect can be defined as an employee’s
right to disengage from work outside of working hours and to
refrain from responding to work-related notifications such as
e-mail or other messages. In a remote working culture, there is
‘a need for an employer to respect a person’s right to
disconnect’. In connection with this definition, to maintain an
ethical work culture, an employee should not be penalized for
refusing to attend to work matters outside of normal working hours.
The European Parliament considers the right to disconnect as a
fundamental right that enables employees to refrain from
work-related tasks such as phone calls, e-mails, and other digital
communication outside of working hours.
An analysis of 3.1 million people’s e-mails and meetings in
16 global cities by Harvard University showed that the average
workday increased by 8.2% or 48.5 minutes in the first weeks of the
pandemic.1 In the continuation of the
corresponding research, it was stated that employees coped with
more interruptions at home and sent 8.3% more e-mails outside of
working hours. According to data from business support company
NordVPN Teams, the average time a remote employee logs on to their
computer in the UK, Austria, Canada, and the USA has increased by
more than two hours a day since the coronavirus crisis.2 A
Eurofound survey reported that 27% of remote employee respondents
work in their spare time to meet job demands.3
Teleworking and ICT-based mobile work practices existed in
different forms across various sectors and professions before the
pandemic, however, due to the rapid spread of these practices
throughout the world and with the changing nature of the work
environment the need for concrete solutions has increased and
actions have been taken accordingly.
What Are the Current Regulations Across the World?
Today, one of the key points is that the law should have the
speed and competence to keep up with the pace of change. It is
important to get to the root causes of change in technological,
social and environmental conditions and to take action accordingly
by means of the law and its components.
The first studies regarding the subject were initiated by France
in 2016. According to the French Labor Law4 which entered into
force on 1 January 2017, companies are required not to impose any
criminal sanctions should employees exercise their right to
disconnect within companies of 50 or more employees. France
demonstrated that the purpose of the law is to ensure that
employees’ non-working hours, vacation times, personal and
family life are respected. The report, which has pioneered the law
and was prepared by the French Minister of Labor, acknowledges that
a “one size-fits-all solution” is not feasible, and
states that negotiated rules and protocols should be implemented at
company level. The report also highlights the importance of
negotiations between employers and employee representatives to find
a balance between employees’ need to disconnect and the
competitive needs of companies, according to the specific situation
of each company.5 France’s leadership in this
matter has inspired other countries. In Italy, labor law states
that to exercise the right it must be defined in a written contract
between an employee and employer and the boundaries of the
obligations of both parties must be determined. The German
Confederation of Employers’ Unions partnered with the German
Trade Union Confederations and the Federal Ministry of Labor and
Social Affairs to develop regulations that meet the needs of
employees and employers, and as a result companies such as
Volkswagen and BMW have pioneered the recognition of the right to
disconnect. In Ireland, a detailed regulation entered into force on
1 April 2021. In this context, the principles that companies are
obliged to comply with are as follows:
- The employee has the right not to routinely continue to work
outside of working hours. - An employee who refuses to work outside of normal working hours
should not be punished. - People’s right to disconnect must be respected.6
In addition to countries’ local regulations, the European
Parliament presented a report in January 2021 including legislative
proposals. As demonstrated in the report, which was accepted by the
European Parliament with 472 votes, it is undeniable that working
from home has positive impacts on matters such as providing work
flexibility, and protecting employment during the Covid-19 crisis.
Nevertheless, working from home, combined with long working hours
and employers’ greater demands, causes employees to face more
problems such as anxiety, depression, burnout and other mental and
physical health issues. Currently, there is no specific law
regarding an employee’s right to disconnect from digital tools
including ICT for business purposes. Yet, to reduce the negative
impacts, all member states should embrace regulations in their
jurisdiction which will allow them to impose sanctions on employers
who do not comply.
Where Does the Right To Disconnect Stand in Turkish Law?
With the development of technology and the reduction in the need
for employees to actually be in the office, the concept of remote
working was regulated in 2016 within the framework of Labor Law
No.4857 (“Law“). To the extent that the
characteristics of the work are appropriate, the work organization
can be designed by employers in accordance with the principles of
remote working. In this context, the principles regarding remote
working have been regulated within the scope of the Remote Working
Regulation (“Regulation“) published in
the Official Gazette No.31419 dated 10 March 2021, and the
boundaries of the business relationship between the employee and
the employer have been clarified.
According to the regulation, the time interval and duration of
remote work should be specified in an employment contract.
Additionally, it has been regulated that working hours can be
decided by the parties, if they comply with the legislation. If
overtime work is expected, an employee’s consent is required
upon the employer’s written request. Remote employees and
employers should mutually decide the conditions of work-related
communications. Still, the Regulation is ambiguous on many issues
and does not determine the right to rest. For this reason, it is
crucial to make a clearer and more specific regulation regarding
the right to rest during remote working.
Article 417/1 of the Turkish Code of Obligations No. 6098
regulates the obligations to protect an employee’s personality,
respect the employee, and maintain order in accordance with the
principles of honesty in the workplace. An employer’s failure
to exercise due care in fulfilling these obligations can
negatively affect their control over employee behavior with
employee tracking systems and may result in maintaining
communication without complying with contracted work hours. Such
employer behavior can cause the elimination of the right to rest
and can harm the personal rights of employees.
There is no direct regulation regarding the right to disconnect
within the scope of Turkish Law. Nevertheless, in today’s
conditions, it is clear that other regulations in Turkey should be
evaluated for any association with the right to disconnect. In this
context, the right to rest should be taken into consideration.
Since it is not feasible to consider working and rest periods
independently from each other, it is regulated in Article 50 of our
Constitution that employees have the right to rest as a requirement
of the social state understanding. For this reason, it can be said
that there is a right to disconnect within the scope of an
employee’s right to rest outside of the working hours
determined in an employment contract, although it is not explicitly
regulated in our jurisdiction.
It should be highlighted that if it is essential to reach an
employee outside of working hours due to the nature of the work,
the right to disconnect should be regulated especially in terms of
additional rest periods.
Nevertheless, if an employee decides to remain accessible via
online communication tools in cases where there is an option to
disconnect within the scope of the right to rest, failing to
respond to an employer’s communication requests by claiming the
right to disconnect will no longer be a consideration.
How Can Ethics and Compliance Guide Us?
One of the most crucial principles of business ethics is not to
be limited to legal regulations, but to analyze the risks in the
current circumstance and implement a best practice model for risk
analysis and policies within an organization proactively. Business
ethics is defined as the discipline of “doing the
right thing in every situation” for the company,
employees, and other stakeholders in any situation.
In this context, although there is no obligation imposed on
employers in terms of the right to disconnect in Turkish Law,
companies should implement a compliance program related to the
right to disconnect as it is a regulation in accordance with the
spirit of the law and plays a major role in establishing a
corporate culture that respects the private life of employees while
taking into account their physical and mental health.
How Should Employers Organize Compliance Programs Step by
Step?
Compliance programs are necessary for a respectful and
sustainable workplace. An inefficient compliance program will not
only fail to meet the needs of employees but will also immediately
affect the success of the company. In order to apply an efficient
compliance program:
- First of all, a strong communication network must be
established. - The existence of a reporting line where employees can report
any misconduct or unethical behavior is essential in creating an
atmosphere of trust and respect. To protect employees and prevent
retaliation for making a report, necessary measures should be
taken, and employees should be informed of the measures. - Additionally, regular employee satisfaction surveys should be
used as a primary tool to measure the functionality of the
compliance program. - To enable strong relationships between remote employees and a
company, different coaching programs should be established, and
employees should be able to appeal to coaches when needed. - Employees need to know that management support a compliance
program without exception so that it will be properly implemented
by employees. Management should utilize all the tools that
demonstrate their support and set an example by always acting in
accordance with the compliance program. - Employers should periodically undertake reviews of contracts
and working practices in relation to working hours and rest
breaks. - To create an effective compliance program, employees should be
supported with training related to best practice for company
communications. This reinforces the appropriate work behavior
expected from employees regarding disconnecting outside normal
working hours.
Efficient implementation of a compliance program should not only
cover internal processes. For example, exit interviews should be
organized to understand the root causes prompting employees to
quit. If an employee is leaving the job because of non-compliant
behavior, the violation processes within the scope of the
compliance program should be reviewed and the source of the problem
should be investigated. As a result of investigations, the
necessary actions and precautions should be taken to prevent the
recurrence of a situation.
One of the most crucial features of an effective compliance
program is to ensure that it is constantly open to change and
improvement and can be shaped according to the necessities of work
life. A living compliance program should respond to the dynamics of
the company, industry, and line of business and should be updated
periodically. Obsolete and outdated compliance programs will lose
their effectiveness and can cause damaging results for the company
and employees. These results can occur in various ways such as the
risk of loss of reputation, sectoral competition risks, and risks
of internal misconduct or unethical behavior. Therefore, employees
should be informed of each update and change, and if necessary,
these should be reinforced and supported with training.
Compliance programs need to be supported by internal policies to
ensure their effective implementation. While these policies should
include provisions regarding an employer’s measures to address
the right to disconnect such as guidance being given to company
managers for the correct tone and sense of urgency to use when
communicating with employees out of hours, they should also outline
the obligations and expectations for employees and state the
requirements for communicating out of hours. They should be drafted
with a proactive approach in which the responsibilities imposed on
employers and employees are followed, reports regarding best
practice within the company are created and an internal audit
mechanism is established. By doing so, employees are assured that
they are performing their duties in an ideal remote working
environment.
The right to disconnect, which should be included in company
policies, should be clearly stated so that the balance between the
employee and employer is maintained. For employees to raise
concerns about the right to disconnect, companies should have a
procedure in place in which employees are offered impartial
guidance. In this regard, employers should include both formal and
informal mechanisms for addressing employee concerns.
To prevent disruption to business operations, an employee can be
obliged to notify an employer if they wish to exercise the right to
disconnect. In this way, the employer can create a new action
plan without delay. Furthermore, in a globalized business life, the
status of working hours and the scope of the right to disconnect
when employees are in different time zones are among the issues
that can be included in compliance policies setting out clear
guidance for disconnecting and expectations for responding to
digital communications.
The implementation of such behavior policies will undoubtedly
influence companies positively with regard to reputation
management. It is critically important that the opportunities
offered in the working environment should significantly distinguish
a company from its competitors, especially if Human Resources
departments are to attract qualified and efficient employees in
their recruitment processes. Consequently, adopting a behavior
policy regarding the right to disconnect is a key point that
companies should take into consideration from a legal perspective
in order to maintain the best possible business operations.
With thanks to Ece Mert for her assistance on this article.
Footnotes
1.
https://hbswk.hbs.edu/item/you-re-right-you-are-working-longer-and-attending-more-meetings
2.
https://www.theguardian.com/business/2021/feb/04/home-workers-putting-in-more-hours-since-covid-research
3.
https://www.europarl.europa.eu/doceo/document/A-9-2020-0246_EN.html#_ftn12
4.
https://www.legifrance.gouv.fr/loda/id/JORFTEXT000032983213/
5.
https://www.loc.gov/law/foreign-news/article/france-right-to-disconnect-takes-effect/?loclr=bloglaw
6.https://www.workplacerelations.ie/en/what_you_should_know/codes_practice/code-of-practice-for-employers-and-employees-on-the-right-to-disconnect.pdf
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