Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

Start by selecting your Topic of interest below. Then choose your Regions and finally refine the exact Subjects you are seeking clarity on to view detailed analysis provided by our carefully selected internationally recognised experts.

4. Results: Answers
Labour and Employment
1.
Legal framework
1.1
Are there statutory sources of labour and employment law?
Turkey

Answer ... Yes. Employment relationships are mainly regulated under the Labour Code. Other statutes that also regulate employment relationships include:

  • the Social Security and General Health Insurance Law;
  • the Occupational Health and Safety Law;
  • the Law on Trade Unions and Collective Bargaining Agreements; and
  • secondary legislation, such as:
    • the Regulation on Part Time Employment Following Maternity Leave or Unpaid Leave;
    • the Regulation on Occupational Health and Safety Services;
    • the Regulation on Employment Conditions of Pregnant or Nursing Employees and Nursing Rooms and Child Care Centres; and
    • the Regulation on Employment of Female Employees on Night Shifts.

Additionally, court practices and resolutions also comprise a significant part of Turkish labour law.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
1.2
Is there a contractual system that operates in parallel, or in addition to, the statutory sources?
Turkey

Answer ... Parties are free to determine the terms and conditions of employment through contracts, as long as this does not negatively affect employees’ statutory rights.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
1.3
Are employment contracts commonly used at all levels? If so, what types of contracts are used and how are they created? Must they be in writing must they include specific information? Are implied clauses allowed?
Turkey

Answer ... Pursuant to the Turkish Labour Code, employment contracts are commonly used at all levels.

Fixed-term employment contracts (for a period of more than one month) and indefinite-term contracts for a period of one year or more must be executed in writing. Employment contracts must also include the following information:

  • the general and special conditions of the work;
  • daily or weekly working hours;
  • the basic salary and other benefits;
  • the schedule of salary payments;
  • the term of the contract; and
  • the provisions that the parties should comply with in case of termination.

If no written contract is executed, the employer must inform the employee in writing of the above terms within two months of the commencement of work.

In addition, the employment contract may include:

  • a job description;
  • details of any probation period; and
  • non-compete and non-disclosure clauses.

An employment contract for remote working must be executed in writing and include:

  • a definition of the work to be performed;
  • the manner in which the work is to be performed;
  • the method of communication between the employer and employee;
  • the term of the contract;
  • the place of work;
  • salary and benefits;
  • the equipment to be provided by the employer and the liabilities relating to the protection of the equipment; and
  • general and special working conditions.

Depending on the duration of the work, employment contracts may be executed as fixed-term or indefinite-term contracts.

Fixed-term employment contracts may be executed between the employer and the employee in writing only:

  • for work projects of a definite term;
  • to achieve an objective such as completion of a certain project; or
  • to ensure the occurrence of a certain event.

Fixed-term employment contracts cannot be successively renewed more than once without an essential reason, such as the continuation of a project or the occurrence of a specific event. Such contracts can be continuously renewed only if the nature of the work allows only for a fixed-term contract. If a fixed-term employment contract is executed or renewed in contrary to the above, it will be considered an indefinite-term contract as of the date of commencement of employment.

Additionally, depending on how frequently the employee is required to work, employment contracts can be either part time or full time. Part-time employees must work at least one-third fewer hours than full-time employees at the same workplace and cannot perform overtime work.

There is also a special type of part-time employment (employment on call), whereby the employee works only when called on to do so by the employer. In the case of part-time on-call employment:

  • if it is not determined in the agreement how many hours the employee will work, the employee’s weekly working hours will be deemed to be 20 hours. Even if the employee is not called to work in a specific week, he or she must be paid for the working hours stipulated in the agreement (or, if not determined, for 20 hours);
  • if the employee’s daily working hours are not determined in the agreement, the employer must make the employee work for at least four hours (per day) on each call; and
  • unless otherwise stipulated by the parties in an agreement, the employer must give the employee at least four days’ notice when calling on him or her for work.

Material benefits must be paid to part-time employees in proportion to their working hours.

An employer and employee may agree on remote working, whereby the employee works at home or outside the workplace using technological communication devices.

Temporary employment is also permitted under Turkish law. In this regard, temporary employment may be established by way of:

  • the temporary transfer of employees from one employer to another within the same group of companies as a temporary work relationship (this arrangement must be executed in writing, cannot exceed a period of six months and can be renewed only twice); or
  • private employment offices.

The situations in which temporary employment can be established through private employment offices are listed by law and include the following:

  • maternity leave;
  • military service or other temporary suspension of employment;
  • seasonal agricultural work; and
  • an unforeseen increase in workload, provided that the number of temporary employees does not exceed 25% of the workforce.

Temporary employment relationships that cover seasonal agricultural work and home services may have an indefinite duration. Temporary employment relationships for other work may have a term of up to four months, which can be renewed twice, provided that the total renewal period does not exceed eight months.

Temporary employment relationship cannot be established:

  • at workplaces in which collective redundancies have taken place in the preceding eight months;
  • in public institutions or organisations;
  • in underground mining companies; or
  • if six months has not passed since the end of a previous relationship in the same circumstances at the employer.

With regard to implied clauses, these may be applicable depending on the circumstances.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
2.
Employment rights and representations
2.1
What, if any, are the rights to parental leave, at either a national or local level?
Turkey

Answer ... Parental leave is outlined in question 2.2. This leave applies to all employees working under the Turkish Labour Code.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
2.2
How long does it last and what benefits are given during this time?
Turkey

Answer ... Maternity and pregnancy rights and benefits: Pregnant employees are entitled to eight weeks of leave before and after birth (16 weeks in total). In the case of multiple births (eg, twins), two weeks are added to the eight weeks of leave before pregnancy. If the employee gives birth prematurely, the remaining maternity leave before birth is added to the post-birth maternity leave. Such periods may be extended only where a doctor’s certificate confirms that it would be dangerous for the employee to work.

If the pregnant employee so desires, she may continue working up to three weeks before the birth, where a doctor’s certificate confirms that this is possible. In such cases the employee will be entitled to leave for up to 13 weeks after the birth.

Pregnant employees shall also be given paid leave to attend periodic medical check-ups during pregnancy.

During maternity leave, the employee will receive temporary incapacity payments from the Social Security Institution; therefore, the employer is not obliged to pay the employee’s salary.

Once the post-birth leave has ended, the employer must provide a further six months of unpaid leave at the employee’s request.

It is obligatory to provide breastfeeding leave of up to 1.5 hours per day to employees after giving birth, until the baby is one year old. The periods given for breastfeeding leave are to be determined by the employee. If the employee so desires, she may use this period for breastfeeding leave several times a day by dividing up the 1.5 hours accordingly. Periods used for breastfeeding leave will be recognised as employment periods.

An employee who is pregnant or who recently gave birth and is breastfeeding cannot work night shifts or for more than 7.5 hours per day.

Following the end of their statutory maternity leave, female employees can request unpaid leave for half of their weekly working time for a 60-day period in relation to the birth of their first child. This is increased to 120 days in relation to the birth of their second child, and to 180 days in relation to the birth of their third child and any subsequent births. In the case of multiple births, 30 days is added to the relevant leave period. Where a child is disabled from birth, this period is increased to 360 days. During this period, an employee is paid by the employer only for the hours that she works, but may be entitled to social security benefits.

A female employee may request to work part time at any point from the date on which the maternity leave or the unpaid leave mentioned above ends until the beginning of the month following the date on which her child’s compulsory primary education starts. This request is not subject to the employer’s approval, except in certain fields of work (eg, some work performed in private health institutions). In order to request part-time employment, the spouse of the female employee must also be in work and not be unemployed.

Maternity leave is available only to biological mothers and not adoptive mothers. However, both male and female employees who adopt a child are entitled to three days of paid leave.

Paternity leave: A male employee whose spouse has given birth is entitled to five days of paid leave. If the mother dies during childbirth or following the birth, the father can use her remaining statutory postnatal maternity leave.

Carer’s leave: An employee who is the parent of a child with a severe disability (involving incapacity of at least 70%) or a chronic disease is entitled to take up to 10 days of paid leave per year to care for the child. Only one of the parents may take the leave, which may be taken in a single block or in parts.

Parental leave: As long as both parents work, by giving one month’s notice, one of the parents of a child is entitled to request part-time employment from the end of the mother’s maternity leave until the beginning of the month in which the child’s compulsory primary education starts. This right is also available in relation to the adoption of a child who is less than three years old.

In relation to the adoption of a child who is less than three years old, one of the parents can take eight weeks of paid parental leave from the date of the child’s placement. This can be followed by up to six months of unpaid leave.

Following the end of the statutory parental leave period, either adoptive parent can request unpaid leave for half of his or her weekly working time for a 60-day period in relation to the adoption of his or her first child. This is increased to 120 days in relation to the adoption of a second child, and to 180 days in relation to the adoption of a third child and any subsequent adoptions. In the case of multiple adoptions, 30 days is added to the relevant leave period. Where a child is disabled at the point of adoption, this period is increased to 360 days. During this period, an employee is paid by the employer only for the hours that he or she works, but may be entitled to social security benefits.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
2.3
Are trade unions recognised and what rights do they have?
Turkey

Answer ... Trade unions are recognised under Turkish labour law.

Pursuant to the legislation, a union is a legal entity which is established by at least seven employees (employee union) or seven employers (employer union), in order to preserve and develop the common economic and social rights and benefits of employees oemployers in relation to their work relations in one business line.

Real and legal persons have the right to establish a union; however, persons who have been sentenced due to embezzlement, commitment, bribery, theft, fraud, forgery, breach of confidence, fraudulent bankruptcy, collusive tendering, scheme of execution of act, absolution of asset values arising from crime or smuggling cannot establish unions.

People over the age of 15 who are considered as employees can become members of employee unions. People who are considered as employers can be members of employer unions.

Employees and employers cannot be members of more than one union in the same business line at the same time. However, employees who work in the same business line at the workplaces of separate employers can be a member of more than one union. If the employees and employers become members of more than one union in contradiction with the above, the subsequent memberships will become invalid.

The statutory role of workplace trade union representatives is to:

  • hear employees’ requests and handle their grievances;
  • maintain cooperation and harmony at work, and peaceful relations between employees and employers;
  • protect employees’ rights and interests; and
  • assist in the application of the employment conditions provided for in employment legislation and collective agreements.

Employers are under no statutory obligation to inform and/or consult employees or employee representatives about general business or employment matters. There is no statutory system of works councils or elected employee representatives with a general information and consultation role.

Where a trade union is officially authorised as competent to conclude a collective agreement for a workplace or enterprise, the employer must inform and consult the union’s representatives about planned collective redundancies.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
2.4
How are data protection rules applied in the workforce and how does this affect employees’ privacy rights?
Turkey

Answer ... Employers are obliged to treat any type of information regarding their employees to which they gain access with integrity and in accordance with the law; and not to disclose any employee information which the employee has a justifiable interest in keeping secret. Additionally, employers are under a specific obligation to keep health data arising from employees’ medical examinations confidential.

Employers may use employee information where this is necessary for their employment.

Employers are obliged to comply with Turkish data protection legislation regarding the processing of personal data (eg, they must provide employees with relevant information as per the law and take necessary precautions to safeguard such data).

Personal data must not be transmitted abroad without the express consent of the employee, unless one of the exceptions apply - for example, where the retention of personal data is expressly stipulated by law or the personal data has been made public by the relevant employee. Additionally, personal data must not be transferred abroad, unless:

  • sufficient protection is afforded in the country where the personal data is to be transmitted (as determined by the Board for the Protection of Personal Data); or
  • if there is not sufficient protection, the data controller in Turkey and the data importer abroad have entered into a written agreement to undertake to provide an adequate level of protection, which has been approved by the Board for the Protection of Personal Data.

Personal data must be deleted, destroyed or anonymised when there is no longer any lawful reason to retain or process it.

Employees have certain rights in relation to personal data processed by their employer, as follows:

  • the right to acknowledge whether their personal data is being processed;
  • the right to request information on the processing, where their personal data is being processed;
  • the right to acknowledge the purpose of processing and whether their personal data is being used in accordance with such purpose;
  • the right to know the identity of any third parties to which the personal data is transmitted, both at home and abroad;
  • if their personal data is processed wrongfully or deficiently, the right to request corrections and to request notification of transactions performed in this respect to third parties to which such data has been transferred;
  • the right to request the deletion or disposal of their personal data where the reasons for processing no longer exist, even where the personal data is being processed in compliance with Turkish data protection law and other relevant laws, and to request notification of transactions performed in this regard by third parties to which the personal data has been transferred;
  • the right to object to the occurrence of a circumstance against the interests of the data subject as a result of analysis of the processed data exclusively by automatic systems; and
  • the right to request compensation for damages incurred due to the unlawful processing of personal data.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
2.5
Are contingent worker arrangements specifically regulated?
Turkey

Answer ... No, contingent worker arrangements are not regulated under Turkish labour law.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
3.
Employment benefits
3.1
Is there a national minimum wage that must be adhered to?
Turkey

Answer ... There is a statutory national minimum wage, which is applicable to all employees.

The national minimum wage is determined by the Minimum Wage Fixing Board. Employers cannot pay their employees salaries which are lower than the national minimum wage.

From 1 January 2020, the national minimum wage is TRY 2.943 gross per month. This monthly amount applies to employees working normal full-time hours for the whole month; employees who work less than full-time hours are entitled to a proportional amount of the monthly minimum wage.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
3.2
Is there an entitlement to payment for overtime?
Turkey

Answer ... Yes.

The maximum number of hours that an employee can work each week stands at 45, unless otherwise determined by the employee and employer. If the parties agree, normal weekly working hours may be unequally distributed across the working week. However, employees may not be employed for more than 11 hours per day (including overtime).

Overtime is any work that exceeds 45 hours a week. In cases where balancing is applied, work exceeding 45 hours a week shall not be deemed as overtime as long as the average working hours of the employee do not exceed 45 per week. Balancing occurs during periods when the employer has a heavy workload: with the employees’ consent, the employer may request them to work more than 45 hours per week, as long as it balances their average weekly hours by making them work less within a two-month period, so that their average working hours stays at 45 hours. In such cases weekly work over 45 hours will not be considered overtime. However, balancing cannot be applied for more than two months - although this period can be increased to four months under a collective bargaining agreement.

In cases where the weekly working hours are determined to be less than 45 hours, work that exceeds the average weekly working limit and which lasts only up to 45 hours weekly is regarded as additional working hours.

In cases where the employee’s salary is stated to be inclusive of pay for overtime/additional working hours, the employee will not be entitled to additional pay for overtime of up to 270 hours a year. However, this is valid only for employees who receive a salary that is reasonably higher than the minimum wage.

Workers may be remunerated for overtime/additional working hours through either increased salary or time in lieu. The employee has the right to choose from among these options; the employer has no discretion in this regard.

Salary for each hour of overtime shall be 50% more than the employee’s normal hourly rate.

Salary for each additional working hour shall be 25% more than the employee’s normal hourly rate.

If an employee who has worked overtime or additional working hours so prefers, rather than receiving increased salary, he or she may receive 1.5 hours of time in lieu for each hour of overtime and 1.25 hours of time in lieu for each additional working hour. The employer must grant the employee the time in lieu to which he or she is entitled within six months, within his or her normal working hours and without any deduction to his or her salary.

Pursuant to the Labour Code, overtime cannot exceed 270 hours per year. However, this limit is often exceeded in practice by employers, due to changing business needs.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
3.3
Is there an entitlement to annual leave? If so, what is the minimum that employees are entitled to receive?
Turkey

Answer ... Yes. Employees who have completed at least one year of service in the workplace are entitled to paid annual leave. The minimum periods of paid leave are set out in the following table; however, such periods may be extended by the employment contract or a collective bargaining agreement.

Duration of employment Paid annual leave entitlement
1 to 5 years 14 days
Between 5 years and 15 years 20 days
More than 15 years 26 days

In calculating an employee’s entitlement to paid leave, the total period for which he or she has been employed in one or more workplace belonging to the same employer shall be taken into consideration.

Additionally, for employees below the age of 18 and above the age of 50, the length of paid annual leave must not be less than 20 days.

Employees may divide up their paid annual leave over the course of the year, provided that at least 10 days of paid leave are taken consecutively. If an employee can prove that he or she is spending his or her annual leave at a location away from the area where the workplace is situated, the employer must grant the employee, on request, up to four days of unpaid leave to travel there and back.

Other kinds of leave, paid or unpaid, granted by the employer during the year or taken by the employee as recovery and sick leave cannot be deducted from his or her annual leave.

National holidays, week holidays and public holidays which coincide with a period of annual leave are not included in the employee’s paid annual leave.

An employee should, in principle, use all of his or her paid leave in respect of one year of employment in the following year of employment. However, if he or she does not use all or part of this entitlement in the following year, the unused leave entitlement may be carried over and used in the subsequent year or years. The entitlement does not expire until it has been used or the employment is terminated. If the employment is terminated for any reason, the employer must pay the employee in respect of any statutory annual leave entitlement accrued but not yet used. In no other circumstances may an employee exchange his or her statutory annual leave entitlement for financial compensation from the employer.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
3.4
Is there a requirement to provide sick leave? If so, what is the minimum that employees are entitled to receive?
Turkey

Answer ... Employers must register their employees with the Social Security Institution (SSI) before commencement of work and make monthly premium payments to the SSI. These premium payments include coverage for injury or illness.

Given this regime, employees cannot seek compensation from their employers in the event of unintentional occupational accidents or illnesses. However, if the employer is at fault, the SSI may seek to recoup some of the costs it incurs in relation to that employee from the employer, in proportion to the degree of fault. In such cases the employee can also seek compensation from the employer to compensate for damages that are not covered by the SSI.

If the employee does not receive a fixed monthly salary, the employer’s obligation to pay his or her salary applies only for the first two days of illness. After the second day of illness, if the employee satisfies the eligibility criteria, the SSI will commence payment temporary incapacity payments to the employee, in the amount of a certain portion of employee’s salary, until the employee returns to work.

If employee is not at work due to a workplace accident or occupational disease, the SSI will commence making temporary incapacity payments as of the first day of absence. Therefore, the employer is not obliged to make any salary payments.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
3.5
Is there a statutory retirement age? If so, what is it?
Turkey

Answer ... There is a minimum retirement age, which varies depending on gender, employment commencement date and other related factors. However, employees may continue to work after they have reached the retirement age.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
4.
Discrimination and harassment
4.1
What actions are classified as unlawfully discriminatory?
Turkey

Answer ... The Labour Code prohibits employers from discriminating in the employment relationship on grounds of sex, race, colour, disability, language, political opinion, philosophical belief, religion or similar reasons (these are not defined, but may include grounds such as age).

Additionally, discrimination based on gender, race, colour, language, religion, belief, sect, philosophical or political view, ethnic origin, wealth, birth, marital status, health condition, disability or age is prohibited by the Law on the Human Rights and Equality Institution of Turkey.

The Law on the Human Rights and Equality Institution of Turkey contains certain statutory exceptions to the statutory prohibition of discrimination in the employment relationship. For example, sex discrimination may be permissible for biological reasons or reasons relating to the nature of the job. Further, women must not be employed for underground or underwater work, such as mining, cable-laying or the construction of sewers and tunnels. A similar restriction applies to the employment of people with disabilities.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
4.2
Are there specified groups or classifications entitled to protection?
Turkey

Answer ... The Law on People with Disabilities prohibits discrimination on grounds of disability, including in relation to recruitment and selection. Employers must take the necessary measures to eliminate or mitigate barriers to employment faced by disabled employees and job applicants, and make physical adjustments and provide technical support to help people with disabilities to work.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
4.3
What protections are employed against discrimination in the workforce?
Turkey

Answer ... The prohibition of discrimination on the above grounds applies to all aspects of the employment relationship, including pay, employment conditions, promotion, access to training and termination of employment. However, the Labour Code does not apply to discrimination against job applicants in the recruitment and selection process.

The Labour Code does not elaborate on the general prohibition of discrimination on the above grounds, except in relation to pay discrimination and discrimination on grounds of sex. It provides that, except for biological reasons or reasons relating to the nature of the job, an employer must not discriminate, either directly or indirectly, against an employee in the conclusion, conditions, execution or termination of the employment contract, on grounds of the employee’s sex or maternity status.

With regard to other grounds of discrimination, the Labour Code provides that unless there are essential reasons for differential treatment, an employer must not discriminate between full-time and part-time employees, or between employees on fixed-term employment contracts and those on indefinite-term employment contracts.

The Penal Code makes it a criminal offence to discriminate by making a person’s employment or non-employment dependent on his or her race, language, nationality, colour, sex, disability, political ideas, philosophical beliefs, religion or sect.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
4.4
How is a discrimination claim processed?
Turkey

Answer ... If an employer violates the Labour Code’s equality and non-discrimination provisions in the execution or termination of the employment relationship, the employee may file suit seeking compensation from the employer of up to four months’ wages plus compensation for any actual damages suffered. An employer that fails to observe these provisions is also liable to an administrative fine per employee affected. The relevant provisions are the statutory prohibitions of:

  • discrimination in the employment relationship on grounds of sex, race, colour, disability, language, political opinion, philosophical belief, religion or similar reasons;
  • discrimination between full-time and part-time employees, or between employees employed on fixed-term employment contracts and those on indefinite-term employment contracts; and
  • the provision of different remuneration for employees performing the same or similar jobs, or work of equal value.

Where an employee claims that the employer has violated these provisions, the burden of proof rests on the employee. However, if the employee can show a strong likelihood of such violation, the burden of proof that the alleged violation has not occurred rests on the employer.

The above remedies are available only to employees, and not to job applicants who believe that a prospective employer has discriminated in the recruitment and selection process.

With regard to sexual harassment, an employee is entitled to terminate the employment contract for just reason if:

  • the employer sexually harasses the employee; or
  • the employee is sexually harassed by another employee or by a third party in the workplace, and the employer does not take adequate measures to prevent the harassment despite being informed of such conduct.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
4.5
What remedies are available?
Turkey

Answer ... An employee who believes that he or she has been dismissed on prohibited discriminatory grounds may seek compensation of up to four months’ wages plus compensation for any actual damages suffered. The employee may also seek an additional remedy if he or she is covered by job security protection.

If an employee who is employed on an indefinite-term employment contract and is not covered by job security protection believes that he or she has been dismissed on the invalid discriminatory grounds set out above, he or she may bring a case seeking bad-faith dismissal compensation that is equal to three times the salary payable for the applicable notice period.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
4.6
What protections and remedies are available against harassment, bullying and retaliation/victimisation?
Turkey

Answer ... If an employee terminates the employment contract due to sexual harassment, he or she is entitled to a statutory severance payment from the employer (if the employee has completed at least one year’s service with the employer) and may file suit seeking compensation from the employer for mental or physical damages suffered. Irrespective of whether he or she has terminated the employment contract, an employee who suffers sexual harassment at work may file suit against the employer or the harasser seeking compensation for damages suffered. The employer is liable for the actions of an employee who commits harassment if it took no action to prevent the harassment on becoming aware of it.

The criminal offence of sexual harassment is punishable by imprisonment for between three months and two years. If the offender has abused his or her hierarchical position, or his or her position at the same workplace as the victim, to commit the harassment, the punishment is increased by 50%. It the victim is forced to leave his or her job as a result of the harassment, the offender must be sentenced to imprisonment for at least one year.

Additionally, administrative fines may be applicable under the Law on the Human Rights and Equality Institution of Turkey.

Employees who file suit against their employer for unlawful discrimination, make a discrimination complaint or witness or report discrimination enjoy no specific statutory protection against dismissal or other disadvantage by the employer. However, an employer cannot validly terminate employees who are covered by job security protection for filing a complaint or participating in proceedings against the employer involving alleged violations of any laws or regulations, or having recourse to competent administrative or judicial authorities.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
5.
Dismissals and terminations
5.1
Must a valid reason be given to lawfully terminate an employment contract?
Turkey

Answer ... Prior to termination, it should be determined whether the employee is covered by job security protection under the Labour Code. An employee will enjoy job security protection under the code if:

  • he or she:
    • has been employed by the employer for at least six months;
    • has an indefinite-term employment contract;
    • is not an employer representative who is authorised to manage the entire company (eg, general manager) or the assistant thereof; and
    • is not an employer representative who is authorised to manage the entire workplace and to recruit/terminate employees, or the assistant thereof; and
  • the employer (and its group companies to which it is organically linked) has at least 30 employees globally.

If the employee is not covered by job security protection and has an indefinite-term employment contract, the employer can terminate the employee without providing a reason for termination and the employee cannot claim unfair dismissal.

If the employee is covered by job security protection, the employer needs a valid or just reason for termination and, following termination, the employee may claim for unfair dismissal.

Valid reasons for termination relate to:

  • the employee’s capacity/performance;
  • the employee’s conduct; or
  • the operational requirements of the business, establishment or work.

Just reasons for termination by the employer or the employee are listed under the Labour Code. In relation to termination by the employer, just reasons relate, among other things, to:

  • the employee’s immoral, dishonourable or malicious conduct, or other similar behaviour;
  • the employee being arrested or in custody; or
  • the employee’s health.

In relation to termination by the employee, just reasons relate, among other things, to:

  • the employee’s health; and
  • the employer’s immoral, dishonourable or malicious conduct, or other similar behaviour.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
5.2
Is a minimum notice period required?
Turkey

Answer ... Before terminating an indefinite-term employment contract, the terminating party must serve notice on the counterparty. The notice periods set out in the following table are the statutory minimum and may be increased by the employment agreement or a collective bargaining agreement.

Duration of employment Notice period
Less than 6 months 2 weeks
Between 6 months and 1.5 years 4 weeks
1.5 to 3 years 6 weeks
More than 3 years 8 weeks

The terminating party may immediately terminate the employment contract by paying in advance the salary corresponding to the notice period (payment in lieu of notice). In such case all monetary benefits plus other benefits which can be measured in monetary terms emanating from the employment contract and under the Labour Code must be taken into consideration in addition to the salary.

Employees who are on notice of dismissal are entitled to paid time off work to look for new employment for at least two hours per working day.

During the probationary period, the employer or employee may terminate the employment contract without notice.

Notice periods will not apply in case of termination for just cause.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
5.3
What rights do employees have when arguing unfair dismissal?
Turkey

Answer ... If the employer terminates the employee based on valid reasons, but the employee claims that no reasons were given for his or her dismissal or that the reasons given were not valid as per the Labour Code, he or she may file suit against the dismissal.

In cases of a dismissal with notice (provided that the employee is covered by job security protection), the burden of proving that the dismissal was based on valid reasons rests on the employer.

Since 1 January 2018, the parties to employment-related disputes have been obliged to attempt mediation before bringing an employment claim to the court (except for claims arising from workplace accidents and occupational diseases).

A dismissed employee who seeks reinstatement must commence mediation within one month of the date of the termination letter, stating that no reasons - or no valid reasons - were given for the termination. If the parties fail to reach an agreement at the end of the mediation, a claim may be brought in the courts within two weeks of preparation of the final written minute.

If a mediator or a labour court concludes that the dismissal with notice is invalid because the employer gave no reasons - or no valid reasons - for the dismissal, the employer must, in principle, reinstate the employee within one month. In such cases the employee must apply to the employer for reinstatement within 10 working days of the decision being communicated to him or her (if the employee does not apply within this period, the dismissal is deemed valid). If the employer does not reinstate the employee on application, it must pay him or her financial compensation. In such cases the compensation is set by the court at between four and eight months’ salary.

Irrespective of whether the employee is reinstated or receives financial compensation for the dismissal, the employer must pay his or her salary and other benefits for the period between termination and the decision, up to a maximum of four months. In practice, invalid dismissal cases may last for up to two and a half years, including appeals.

Valid grounds are not required for the dismissal with notice of an employee employed under an indefinite-term employment contract who is not covered by job security protection. Therefore, such employees cannot file suit seeking reinstatement or compensation for invalid dismissal. However, in certain circumstances such employees may claim that they were dismissed in bad faith and file suit seeking compensation of three times the salary payable for the statutory notice period that would have otherwise been applicable.

The above provisions are also applicable in the event of termination for just reason.

Employees employed under fixed-term employment contracts may not be dismissed with notice during the term of the contract (except where this is for more than 10 years, in which case the contract may be terminated after 10 years with six months’ notice). Where such employee is terminated for just reason, he or she may claim that there were no just reasons for the dismissal and file suit seeking compensation from the employer in the form of the salary and benefits to which he or she would have been entitled until the end of the contract’s term, subject to any deductions made by the court.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
5.4
What rights, if any, are there to statutory severance pay?
Turkey

Answer ... The employer must pay the employee a statutory severance payment where the employment terminates for various reasons, provided that the employee has completed at least one year’s service with the employer.

An eligible employee is entitled to a severance payment if the employment contract is terminated by the employer for any reason, except in case of termination by the employer for just reasons relating to the employee’s immoral, dishonourable or malicious conduct or other similar behaviour.

A statutory severance payment is not generally required where the employee terminates the employment contract, except where:

  • the employee terminates the contract without notice for just reasons relating to the employee’s health, the employer’s immoral, dishonourable or malicious conduct or other similar behaviour, or force majeure;
  • the employee resigns in order to receive a monthly old-age, retirement or invalidity pension, or to receive a lump-sum payment from a retirement fund or similar body;
  • the employee resigns voluntarily after meeting the age and contribution requirements for receipt of an old-age pension; or
  • in the case of a female employee, the employee resigns voluntarily within one year after getting married.

A statutory severance payment is also due:

  • where the employment contract is terminated because an eligible employee has been called up for compulsory military service; and
  • to an eligible employee’s heirs if the employee dies while in the employer’s service.

No statutory severance payment is due when a fixed-term employment contract expires at the end of its term.

The statutory severance payment is calculated at 30 days’ pay (at the time of termination of employment) per completed year of service with the employer. For periods of service in excess of full years, the severance payment is calculated pro rata.

There is a semi-annually determined statutory cap on the annual statutory severance payment. Therefore, even if the employee’s 30-day salary exceeds the severance payment cap, the severance payment cap will be taken into consideration instead of the actual salary in calculating the severance payment. The cap is determined as TRY 6.379,86 per month until 30 June 2020.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
6.
Employment tribunals
6.1
How are employment-related complaints dealt with?
Turkey

Answer ... In the event of a dispute, prospective claimants must apply for mediation prior to filing suit before a labour court. The mediator shall be selected by the mediation office from a list notified to the heads of commission. If the parties agree on the chosen mediator, that mediator will be appointed. If the parties fail to reach agreement at the end of mediation, a claim may be brought in the courts within two weeks of preparation of the final written minute.

If the dispute is directed to a labour court, the labour court located at the settlement address of the defendant and at the location where the work or transaction is performed is competent. If there is more than one defendant, the court located at the settlement address of one of such parties is competent. In relation to compensation lawsuits arising from workplace accidents, the court located at the address where the workplace accident or damage has occurred and the court located at the settlement address of the damaged employee are also competent. Jurisdiction agreements against such provisions are null and void.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
6.2
What are the procedures and timeframes for employment-related tribunals actions?
Turkey

Answer ... Prospective claimants cannot file an employment claim without first attempting mediation. If a claim is filed before an application for mediation, the court will reject it on procedural grounds, due to lack of cause of action. This does not apply to claims arising from workplace accidents and occupational diseases.

The parties can participate in the mediation either in person or through their legal representatives or attorneys. An employee who is authorised by the employer by written document may represent the employer in mediation discussions and sign the final written minute.

The new rules on mediation do not apply to claims that were already being heard before the first-instance courts, the regional courts of justice or the Supreme Court as at 1 January 2018.

A dismissed employee who seeks reinstatement must apply for mediation within one month of the date of the termination letter stating that the termination was made without any reason or without valid reason. The mediator must conclude the mediation within three weeks of the date of his or her appointment. This period may be extended for a maximum of one week in obligatory cases.

If the parties fail to reach an agreement at the end of mediation, a claim may be brought in the courts within two weeks of the date of preparation of the final written minute. Where a claim is rejected on procedural grounds because a lawsuit has been filed directly at the labour court without first attempting mediation, it will be notified to the parties ex officio. The parties have two weeks from this date within which to apply for mediation. The lawsuit shall be concluded promptly. If the parties appeal the decision, the regional courts of justice shall resolve the appeal promptly and definitively.

If the dispute is directed to the competent labour court, a final written minute indicating that the parties could not reach an agreement at the end of mediation or a copy thereof approved by the mediator must be added to the lawsuit petition before the claimant can proceed with its claim. If this condition is not met, the court will grant the claimant one week in which to comply. If this requirement is not fulfilled, the lawsuit shall be rejected on procedural grounds.

If a mediator or a labour court concludes that the dismissal with notice of an employee covered by job security protection is invalid (because the employer gave no reason, or no valid reason, for the dismissal), the employer must, in principle, reinstate the employee within one month or make the relevant payment to the employee.

Either party to the dispute may appeal the decision of the labour court to the court of appeals upon receiving the decision. In accordance with the monetary limits set forth in the legislation, the decision of the court of appeals may be definitive or may be appealed to the Supreme Court.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
7.
Trends and predictions
7.1
How would you describe the current employment landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
Turkey

Answer ... Efforts to establish a severance payment fund have been underway in Turkey for a long time and have accelerated in recent years due to the country’s economic status. In this regard, this issue was included in the Annual Programme of the Presidency for 2019.

The policies and precautions set forth under the Annual Programme of the Presidency for 2019 stated that “a severance payment system, which will be based on individual account and with which the accessibility will be provided in respect of all employees in dialogue with social parties, will be established”; and that “a severance payment reform, which will guarantee the accessibility of all employees with the agreement of social parties and which will be based on individual account, will be made”. However, no timeline for the establishment of such fund was indicated.

Although the content and provisions of the relevant fund are as yet unclear, the government has stated that some precautions will be taken in this respect. However, no steps have been taken in relation to the establishment of such fund and it is unclear whether and when such fund will be established.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
8.
Tips and traps
8.1
What are your top tips for navigating the employment regime and what potential sticking points would you highlight?
Turkey

Answer ... As the Turkish courts usually tend to interpret situations in favour of employees, employers would be well advised to adhere strictly to the provisions of the legislation.

For more information about this answer please contact: Batuhan Sahmay from Bener Law Office
Contributors
Topic
Labour and Employment