Turkey: Protection of Employee's Personal Data - Turkish Labor Law

Last Updated: 15 August 2017
Article by Alper Pekcan and İzzet Gürler

There exist some rights and obligations of employees and employers who are parties of an employment contract. In this text, those rights and obligations are going to be evaluated within the scope of the legislation on Personal Data Protection.

Employers' duty of care is accepted as one of the fundamental obligations of employers since the employment contract is a contract that founds personal contact based on trust between an employee and an employer and that is. The importance of this subject in the sense of personal data occurs in terms of personnel files of employees in particular. Arising from its reflection on labor law, protection and conservation of the personnel file of an employee and not declaring it to third parties are within the employers' duty of care the employees and employees' personal data must be processed in compliance with the law and protected both during the period of recruitment and as long as an employee performs a service for an employer as a party of an employment contract and including the following period. Some of the personal data that is found in personnel files of employees are collected at the recruitment stage, some at the beginning of employees' work days and some after employees starts working.

As a matter of fact, as stated in the decision about "processing personal data in workplaces" numbered 8/2001 of the Working Group which was founded according to Article 29 of Data Protection Directive numbered 95/46/AT as an independent advisory body, collecting and processing personal data is not only significant and required during the employment relationship between parties but also during the job interview stage and until the end of the legal period about conservation of existing files after an employment contract expires.

The employer's ability to regulate employees' behavior in workplaces and operate the work in compliance with the law, collective agreements and employment contracts is called "right to govern". According to Turkish Code of Obligations Article 399, "The employer may issue general regulations regarding performing works and behaviors of workers in the worksite and give special instructions to them. The worker is obliged to comply with these to the extent required by honesty rules." In this context, an employer may declare a guide or a circular similar to that containing certain rules in order to establish conditions to work as a whole in the workplace and reinforce the workplace order.

Instructions related to starting and ending hours of daily working period, to the time of usage of paid annual leave or to equipment and technique are shown as example of that kind of instructions. However, the employer must use this right in compliance with justice and the law and without being arbitrary. The employee's personal rights indicate the limits of the employer's right to govern. If there is interference against the employee's personal rights in a level that does not relate to the mentioned purpose of employers', then the usage of the personal data of the employee is going to be illegal.

Employees' commitment to  employers which is one of the essentials of an employment relationship, has a feature that distinguishes an Employment Contract from other contracts for works and services. Commitment in terms of Employment Contracts can be defined as an employee working under the supervision of an employer in accordance with the instructions given by that employer. It is important to know that this commitment factor has personal/legal feature other than economic or technical feature. Thereby, an employee's commitment to the employee shall not legitimate employer's illegal process of the personal data that is possessed by an employee. The fact that employees are dependent on the employer in legal terms and employers have the right to govern in return, the issue that how employees are going to use their rights and freedoms, how their personal rights are going to be protected, the possibility that the information particularly given by employees at the recruitment stage that is required to be kept as secret can be abused by employers, the existence of electronic eye that the new technology brought and the fact that the workplace is controlled by camera, the existence of technological possibilities that allow interference against employees' private life and creates an environment for violence against employees' personal rights have rose the necessity of protection of employees' personal data. The reason for this is that kind of circumstances have the possibility to endanger against employees' personal data. Thus, an employee's approval for his/her personal data to be processed should be considered suspicious and that approval must not be given by being damaged under the threat of the employment contract can't be established or the employment relationship shall end.

Reasons of Legal Conformity on Processing Personal Data

As explained above, employees and the employers have obligations to follow as well as they have bilateral rights. Processing employees' personal data must be committed in compliance with those obligations, as well. It is explained below the way personal data are processed in compliance with law.

a)                 Existence of Express Consent of Employee

To legally process the personal data of an employee depends on whether that employee is informed in complete compliance with the obligation to inform about what the content of the process of the personal data of and employee is, what the solid reason is, for how long they are going to be processed, where those data are going to be used and with whom they are going to be shared, and whether there is clear consent of that employee without doubt and particularly for the data. If there is doubt about the existence of the consent, it is not possible to accept that the consent exists. Considering the fact that employers are in a more powerful situation than employees, it must be questioned in a present case whether the consent was given by free will or not.

It is crucial to state that employee's later consent is not going to justify previous unlawful processing of personal data. On the other hand, it is possible for employees to withdraw their consents and no agreement contrary to this can be made. If an employee does not give consent to applications aimed at processing his/her personal data or if they withdraw their consents, employer must stop processing personal data belong to that employee.

Also, it is an unlawful situation as well that archiving the resume information related to employee candidates considering the fact that personnel file cannot be hold without an employment relationship for the reason that there is no clear consent of personal data owner.

Whether this situation creates a reason for cancellation can be found by evaluating what the aim of processing the personal data is and whether it is within the scope of the duty of loyalty of employee. In a situation where the consent is withdrawn by abusing of the right, employer cannot be expected to stop processing the data.

Before debating the existence of lawfulness of the consent of an employee, the existence of other reasons for lawfulness that are explained in detail below must be examined. If there is found those reasons for lawfulness, there shall be made an examination about whether the employee is informed according to the employers' obligation to inform, not whether there is employee's consent.

b)                 Performance of Obligations Arising from Contract

Processing personal data by aiming at fulfilling the obligations arising from contract and within the limits of contract shall make that transaction lawful. For that reason, there is no need for employee's clear consent; however obligation to inform must be fulfilled by employer.

For instance, for employers to perform their primary obligation of obligation to pay, they have to process the data of employees' salary account or tax identification number.

c)                  Performance of Legal Obligations

There may be found some obligations by tax law, social security law and other legislation that employers must comply with about the subject of processing personal data. It is lawful that an employer processes an employee's personal data within the scope of those legal provisions. As a matter of fact, there is found the obligation of employers to arrange a personnel file for each employee working in his establishment and inform competent authority about the information he/she holds about the employee in Article 75 of Turkish Labor Law, with the headline of "Personnel File of the Employee".

However, related to the obligation mentioned above, employers are under the obligation to use the information they have obtained about employees in congruence with the principles of honesty and law and not to disclose the information for which employees have a justifiable interest in keeping as a secret.

It is necessary to state that what is to be understood by competent authority is courts and judicature. Except competent authorities, employers cannot give personnel files to any institution or authority unless there is a court decision or judicial decision. Courts or judges may need the personnel file for a job in front of them and in this situation employer presents the personnel file directly to the court or to the judicature. Likewise, any institution or authority may need the personnel file. There must be a court or judicial decision for that. Without such decision, giving the personnel file to an authority is evaluated as unlawful use of the personnel file.

More detailed information can be reached on the article "Personnel Files after Turkish Law on the Protection of Personal Data; How must they be, what has changed?" that has been published on our website.

d)                 Superior Legitimate Interest

If data controller's legitimate interests prevail protection of related person's personal data, this legitimate interest may consist valid ground for data processing, on the condition that it does not damage related person's basic rights and freedoms.

This aspect is effective in terms of data processing activities made within employee-employer relationship, as well. The significance of this balance appears more in the situations where employer's responsibility arises or he/she gets damaged because of workers' acts as employee or helper. By this way, when balance of interests of two parties is evaluated within the scope of present case, employee's personal data shall be processed if there is employer's legitimate legal benefit, within the scope of superior private interest.

However, the point that must be considered in particular is that whether absolute economic interests are in the scope of superior private benefit. It is impossible to prefer employer's absolute economic interest over the interest that is aimed at protection of employee's personal data unless employer's benefit is related to his or third persons' personality.

In order to evaluate employer's economic interest within the scope of private interest it must be established, within the scope of the honesty principle and duty of loyalty, whether the employee can be expected to give consent to his/her personal data to be processed, in accordance the characteristics of present case.

e)                 Reasons of Legal Conformity on Processing of Special Categories of Personal Data

According to Turkish Law on the Protection of Personal Data, with the exception of Article 6, employee's clear consent is considered as a reason for lawfulness on processing of special categories of personal data. Special categories of Personal data have more possibility to damage people than other personal data. For the reason that this kind of data is naturally more related with people's basic rights and freedoms and privacies, they have been taken under protection with different methods that other kinds of personal data.

According to Article 6, Paragraph 3, employees' personal data relating to health and sexual life may only be processed for purposes of operation of preventive medicine, medical diagnosis, treatment and care services, management of health services by persons under the obligation of secrecy or a similar obligation. Data related to employee's health may be processed in cases of existence of the reasons that are necessary in terms of deciding whether an employee is suitable for a certain job such as the health report demanded for workers that are going to work at heavy and dangerous jobs according to  Occupational Health and Safety Law and Occupational Health and Safety Services Regulation, performing the obligations regarding occupational health and safety and having required reasons in terms of understanding whether there is a situation of receiving social aid.

In addition to that precautions that are taken by the institution must also be followed while processing special categories of personal data.

It is stated that according to 95/46/AT Directive Article 8/II, unlawfulness shall end also if processing of data is necessary and employer is authorized for employer to perform rights and obligations arising from Labor Law and if law provides required protection in terms of processing sensitive data.

www.cukuryilmaz.av.tr

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Alper Pekcan
İzzet Gürler
 
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