SUPERVISION OF ONLINE MEETINGS IN TELEWORKING APPLICATION EMPLOYER’S RIGHT OF MANAGEMENT
In employment contracts, the performance of work is usually outlined in outline and the details are left as a blank area to be regulated. This empty space is filled by the exercise of the management right left to the employer.
The right to regulate the conduct of work and the behaviour of workers in the workplace with the instructions to be given by the employer, within the framework of the legislation, not contrary to the collective bargaining agreement and the employment contract, is called the right to management.[1]
The employer’s right of management can also be defined as the employer’s authority to set unilateral rules and regulations regarding where, how, when and in what order the work will be carried out and the order and safety of the workplace.[2]
Limits of the Management Right in terms of Supervision of Workers
The right of the employer to supervise the activities carried out at the workplace stems from the employer’s right of management. In this context, the employer can install a closed circuit camera system in the workplace, control the entry and exit times of the employee, control the activities of the employee on the computer, and even search areas reserved for personal use such as the desk and cupboard of the employee in exceptional cases such as strong suspicion of crime, provided that the privacy of private life is respected in the work environment.[3]
The limit in the supervision of the employee and the work is determined according to the conflict of rights between the employer’s management right and the employee’s right to privacy.
Since the employer’s management right is the lowest among the sources of labour law, this right is limited by the sources that are hierarchically above it, such as the constitution, law, collective and individual labour agreement, internal regulations and workplace practices.
Therefore, it is not possible for the employer to give instructions on matters regulated by the constitution, laws, collective and individual labour agreements, internal regulations and workplace practices, and the instructions of the employer within the scope of the management right cannot be contrary to the regulations in these sources.[4]
However, according to human rights theory, the right to privacy of the employee’s private life is a right that takes precedence over the employer’s management right and is strictly protected.
For this reason, the employer is required to take into account as a basic criterion whether any kind of supervision and supervision method that the employer does / plans to do violates the privacy of the employee’s private life.[5]
Among the elements that constitute the basis of the right to privacy, the home is the area that has spatial priority and cannot be interfered with. Therefore, it is not legally possible to take measures that may result in continuous surveillance of the entire home of the employee.
For example, while the employer has the right to monitor the entire workplace with a closed circuit camera system, it is not lawful for the employer to install a camera in the house or a room of the house of the employee working from home during teleworking[6].
EXERCISE OF MANAGEMENT RIGHTS & PROTECTION OF PERSONAL DATA WITHIN THE SCOPE OF TELEWORKING
Within the scope of the right of management, the employer has the authority to supervise the working performance of the remote worker and whether the worker is working or not. In this context, it may be possible to audit all kinds of transactions performed by the remote worker on the computer provided and allocated by the employer by using technological means.
However, in order for this inspection to be deemed lawful, the employee must be notified of the inspection at the beginning of the employment relationship and/or at the stage of switching to the remote working model.
Therefore, the employee must be informed about how the content of the computer, all kinds of operations to be performed on the computer, and how it can be audited by any method deemed appropriate by the employer.[7]
At the point of monitoring the activities carried out on the employee’s computer; it may be possible for the employer to monitor the e-mails of the employee, to monitor the time logged on the employee’s computer, to monitor the time the employee’s computer is actively used, to monitor the keyboard or mouse movements on the employee’s computer, to monitor the meetings attended through computer searches.
It may also be possible for the employer to monitor whether the worker actively participates in meetings held through various online programmes (Zoom, Teams, WebEx, etc.)[8]
In this respect, although there is no legal obstacle to the use of various ways enabled by technology, such as making video participation in the meeting mandatory for the employee, monitoring the screen using the features of the programme used for the meeting, the right to privacy of the employee’s private life should be taken into consideration and these rights should not be violated.
In such cases, the balance of interests between the employer’s right of management and the private life of the employee must be ensured by the employer.
However, the employer is also obliged to protect the personality of the employee pursuant to Article 417 of the Turkish Code of Obligations (“TCO”).
Therefore, the employer must first of all clearly inform the employee about the supervision method in a way to determine the limits of the supervision and the supervision activity carried out by the employer must be related, limited and proportionate to the purpose of the activity. Accordingly, the employer should apply the narrowest possible limitation for the relevant inspection activity. Even in cases where the employee uses his/her own computer, these limitations should be determined more clearly and carefully.[9]
Pursuant to the principle of proportionality, if the employee’s participation in the meeting with audio participation rather than video participation does not affect the continuation of labour relations in any way, and if the active participation of the employee in the meeting can be easily proved only with audio participation, the mandatory opening of the video may be interpreted as a practice that is not proportionate. For this reason, in our opinion, it is also possible that it may cause various damages for the employer.
As a result, requiring the camera to be switched on during online meetings may create a situation that may exceed the limits of the employer’s management right.
Therefore, it would be healthier for the employer to control whether the employee actively participates in the meeting with some more moderate methods (e.g. voice participation, recording the meeting and checking whether the employee responds to the questions directed to him/her, etc.).
With all these audit activities that the employer may take, the personal data of the employees are processed and transferred. In this context, the employer, who is the data controller, has the obligation to inform the relevant persons in accordance with Article 10 of the Personal Data Protection Law No. 6698 (“KVKK”).
According to the said article, during the acquisition of personal data, the data controller or the person authorised by the data controller is obliged to inform the relevant persons about the identity of the data controller and its representative, if any, the purposes for which personal data will be processed, to whom and for what purposes the processed personal data can be transferred, the method and legal reason for collecting personal data and other rights listed in Article 11 of the KVKK.
In addition, the data controller is also required to obtain the explicit consent of the employee in accordance with the LPPD in the use of applications such as taking photographs and recording videos of the employee within the scope of the supervision activities of the employer.[10]
During teleworking, work-related meetings are held on online platforms and at this point, it is of great importance to ensure the security of the personal data of the worker. All elements such as images, user names, audio and video recordings shared by the workers in the meetings held on the online platform are personal data within the scope of KVKK.
In case these data are shared with third parties without consent, some criminal sanctions are also envisaged. Therefore, if the meetings held through online applications are to be recorded, explicit consent must be obtained from each participant attending the meeting.
As a matter of fact, in the statement titled “Public Announcement on Distance Education Platforms” dated 07.04.2020 published by the Personal Data Protection Board (“Board”) on the subject, it was stated that some special categories of personal data such as the names and surnames, voice and images of students are processed on distance education platforms and that these data should be processed in accordance with the conditions set out in Articles 5 and 6 of the LPPD.
Since the data centres of distance education platforms are mostly abroad, data transfer abroad is possible in case of using these platforms, and the conditions specified in Article 9 of the LPPD should be taken into consideration in the transfer of personal data abroad.
In line with the statement made by the Board regarding distance education, the personal data of the workers should also be processed within the scope of the measures stipulated by the Board due to the use of these programmes in the remote working system.
From the Board’s point of view, cameras can only be kept in common areas, and the use of cameras in areas that are not open to use and in areas that are open to use, such as dressing rooms, resting areas and toilets, which are private, is not considered appropriate. Therefore, the employee cannot be forced to switch on the camera when he/she performs his/her work by teleworking in his/her home, which constitutes his/her private living space and is obviously not open to common use.
CONCLUSION
The employer has the authority to supervise the working performance of the employee working remotely and whether he/she is working or not, in accordance with his/her right of management. However, in order for the supervision to be deemed lawful, the employee must be notified of the supervision at the beginning of the employment relationship or at the stage of switching to the remote working model.
The balance of interests between the employer’s right of management and the employee’s right to privacy and respect for the employee’s private life must also be ensured by the employer. In this respect, there is no legal obstacle for the employer to oblige the employee to attend the meetings held through online programmes during teleworking.
However, during this practice, the rights of the employee must not be violated by the employer, otherwise, the employer’s compulsory video attendance may be interpreted as a practice contrary to the principle of proportionality.
This situation may cause some damages for the employer. The employer must fulfil its disclosure obligation in accordance with the LPPD for meetings held through online applications during remote working, and must obtain explicit consent from the employee if it records the image and video of the employee.
After the coronavirus outbreak affecting the world, it seems inevitable that when employers frequently apply the obligation to turn on the camera in the remote working model, which has witnessed an increase in its application, it seems inevitable that there will be discussions that there are completely different views of violations of “privacy of private life” and even “residential immunity”, which are considered among the fundamental rights and freedoms in Article 20 of the Constitution.
[1] Süzek, Sarper. “Labour Law.” Istanbul: Beta Publishing (2017).
[2] Balkır, Zehra Gönül. “Employer’s Exercise of Management Right and Ethical Limits”, Istanbul: (2008).
[3] Üstündağ, Fatma Hediye; İşler, Evren. “Supervision of the Employee in Remote Working Practices”, Istanbul: (2020).
[4] Çelik, Nuri; Caniklioğlu, Nurşen; Canbolat, Talat. “Labour Law Lessons.” Istanbul: Beta Publishing (2020)
[5] Üstündağ, Fatma Hediye; İşler, Evren. “Supervision of the Employee in Remote Working Application”, Istanbul: (2020).
[6] Remote Working: Teleworking, also known as teleworking, working from home, homeoffice working or flexible working, is the name given to the system in which workplace employees work from their own homes. Generally, people who work remotely work independently in an office.
[7] İşler, Esin Mine. “Supervision of Workers in the Remote Working Period and Protection of Personal Data”, Istanbul: (2021).
[8] Üstündağ, Fatma Hediye; İşler, Evren. “Supervision of the Employee in Remote Working”, Istanbul: (2020).
[9] İşler, Esin Mine. “Supervision of Workers and Protection of Personal Data in Remote Working Period”, Istanbul: (2021).
[10] Yönt, Şeymanur. “Remote Working in Turkish Law and Coronavirus (Covid 19) Pandemic”, Istanbul: (2020).
