Working life is a social environment that bring together employees, employers and third parties and which brings along various social risks. The most important feature of contemporary forms of working life is that the working person spends a significant part of his/her daily life at the workplace. During these periods of time spent at the workplace, employees sometimes experience physical and sometimes psychological discomfort as a result of the risks of their working life. Considering that employees spend most of their lives at workplaces, the importance of ensuring that organizational environments are free from all kinds of mistreatment and mobbing in particular is better understood. Legal regulations forming working life are mostly based on preventing workers from occupational accidents and occupational diseases. However, in addition to these, it is observed that there are many risks that adversely affect the psychological health of employees. Thus, there have been many studies on psychological harassment.

Mobbing is not only an organizational and managerial problem as it has a negative impact on people's job and life satisfaction and causes loss of motivation and labour force, but also a social problem as it damages the national economy and the health of the employee. In the Turkish legal system, there are regulations on mobbing in doctrine and practice. The concept of mobbing was first mentioned in the decision of Ankara 8th Labour Court dated 20.12.2006 and numbered 2006/ 19-625. Subsequently, the concept of psychological harassment was included in the Turkish Code of Obligations numbered 6098 for the first time in our legislation.

Historical Development of Mobbing (Psychological Harassment)

The concept of psychological harassment was first used in the 1960s by Austrian scientist Konrad Lorenz to describe the pressure and intimidation seen among animals. It was the Swedish scientist Peter Paul Heinemann who later used this concept as a form of behavior among people. Dr. Heinz Leymann started his studies on psychological harassment in 1982 and the concept of psychological harassment was used by Leymann to express pressure and intimidation behaviors in working life. In the 1980s, the concept of psychological harassment started to be examined increasingly in international academic studies. In the early 1990s, this concept started to take its place in legal regulations. In some countries, there are legal regulations on the subject and in this way, people who are exposed to psychological harassment are tried to be protected, but in some countries, there is no regulation.

Concept

Since psychological harassment (mobbing) is a new concept in the literature, there is no clarity about its Turkish equivalent. Concepts such as "psychological harassment in the workplace", "moral harassment in the workplace", "emotional violence", "intimidation" are used as Turkish equivalents. In order to determine a term to meet the concept of psychological harassment, the Turkish Grand National Assembly Commission for Equality of Women and Men consulted the Turkish Language Institution. The Turkish Language Institution's suggestion for the term is "harassment".

Many authors have defined psychological harassment in different ways. When the judicial decisions in Turkey are examined, it is seen that this concept was first mentioned in the decision of Ankara 8th Labour Court dated 20.12.2006 and numbered 2006/19 E. and 2006/625 K. According to this decision, psychological harassment is defined as "The concept of mobbing includes all kinds of ill-treatment, threats, violence, humiliation, etc. behaviors that are systematically applied to individuals in the workplace by their superiors, equal level employees or subordinates.". Later on, different definitions of psychological harassment were made in judicial decisions.

As a result, to make a definition of psychological harassment; the concept of psychological harassment in the workplace is all kinds of negative treatment, threats, violence, humiliation, etc. that occur systematically and continuously by one or a group of workers in the workplace in order to harm other workers. However, it should be noted that not every dispute or conflict in the workplace causes elements of psychological harassment. In one of its judgements, the Court of Cassation stated that not every act that causes damage to personal rights will constitute psychological harassment. In the decision of the Court of Cassation, it is stated that temporary behaviors that do not show continuity with momentary anger are not psychological harassment, and that the act must be systematic, continuous and intentional in order to be considered psychological harassment.

Psychological Harassment in Turkish Legal System

There is no direct and explicit regulation on psychological harassment in the Turkish legal system, except for the Turkish Code of Obligations numbered 6098, the Law on Human Rights and Equality Institution of Turkey numbered 6701 and the Prime Ministry Decree numbered 2011/2. However, when the legislation on psychological harassment, especially the Constitution, the Labour Law, the Civil Code, the Code of Obligations and the Penal Code are evaluated as a whole, it should be noted that the Turkish legal system has sufficient legal regulations in favor of the mobbed person.

Constitution

According to Article 12 of the Constitution, "Everyone possesses inherent fundamental rights and freedoms which are inviolable and inalienable. Fundamental rights and freedoms also include the duties and responsibilities of the individual towards society, his family, and other individuals."

Criminal Law

Crimes that can be included in the act of psychological harassment and that can be encountered in working life are crimes such as "the crime of directing suicide", "intentional injury", "insult", "disturbing the peace and tranquility of persons", "persecution", "sexual harassment", "discrimination", "violation of freedom of work and study", "violation of privacy".

Civil Code

Any attack on the personal rights of individuals is unlawful within the framework of the Turkish Civil Code and the Civil Code regulates that individuals can apply to the court in such cases. Within the framework of Article 24 of the Turkish Civil Code ("TCC") "The person subject to assault on his/her personal rights may claim protection from the judge against the individuals who made the assault. Each assault against personal rights is considered contrary to the laws unless the assent of the person whose personal right is damaged is based on any one of the reasons related to private or public interest and use of authorization conferred upon by the laws"

Law of Obligations

For the first time in our legislation, Article 417 of the Turkish Code of Obligations numbered 6098 ("TCO") stipulates that the employer is obliged to protect the employee from psychological harassment. Article 417 of the TCO is as follows:

"The employer is obliged to protect and respect the personality of the employee in the service relationship, to ensure an order in accordance with the principles of honesty in the workplace, and to take the necessary measures especially to prevent the workers from being subjected to psychological and sexual harassment and to prevent further harm to those who have been subjected to such harassment. (...)

Compensation of damages due to the death of the employee, damage to body integrity or violation of personal rights due to the conduct of the employer against the law and the contract, including the above provisions, is subject to the provisions of liability arising from the violation of the contract.

Labour Law

Labour Law numbered 4857 does not contain a provision that explicitly protects the employee against psychological harassment at the workplace. Pursuant to Article 5/f I of the Labour Law, no discrimination based on language, race, sex, political opinion, philosophical belief, religion and sect, disability and similar reasons can be made in the employment relationship.

Within the framework of Article 24/II of the Labour Law, the employee has the right to terminate the employment contract for just cause. The following cases listed in subparagraphs b, c and d under the heading of "situations that do not comply with the rules of morality and goodwill and the like" of the article entitle the employee to terminate the employment contract immediately for just cause. Article 25/II of the Labour Law gives the employer the right to terminate the employment contract of an employee who teases or sexually harasses another employee at the workplace for just cause.

Prime Ministry Decree

In 2011, the Prime Ministry Decree numbered 2011/2 on the Prevention of Psychological Harassment in the Workplace was also published. This decree aims to prevent psychological harassment. Within the framework of the decree, the Board for Fighting Psychological Harassment was established within the Ministry of Labour and Social Security. This board published the "Information Guide on Psychological Harassment (Mobbing) at Workplace" on the website of the Ministry of Labour and Social Security. At the same time, ALO 170 hotline has been established to listen to all problems and complaints in working life. However, this decree does not have any penalty against psychological harassment in the workplace.

Legal Procedures for the Employee Suffering from Psychological Harassment

Employee's Right to Refrain from Working

In the legislation, the right of the employee to refrain from working is regulated under Article 408 of the TCO and Article 13 of the Occupational Health and Safety Law No. 6331:

"If the employer prevents the fulfilment of the performance of the performance of work through his fault or defaults in accepting the performance, he is obliged to pay wages to the employee and cannot ask the employee to fulfil this performance later. However, the expenses that the worker is saved from incurring due to this prevention and the benefits that the employee earns or deliberately avoids earning by doing another job are deducted from employee's wage."

Accordingly, in cases where the employer fails to provide its employees with a working environment suitable for occupational health and safety in terms of both physical and mental health, fails to take the necessary measures in the workplace to ensure this, and fails to provide a job suitable for the health of the employee, the employee is entitled to refrain from working and the employer's wage payment obligation continues.

Termination of the Labour Agreement by the Employee for Just Cause

In the Article 24/II of the Labour Code, "the employer uttering words or behaving in such a way as to touch the employee's honour and reputation", "the employer making serious allegations and insinuations against the employee that are offensive to honour and dignity", "the employer uttering words or behaving in such a way as to touch the honour and reputation of the employee or a member of the employee's family or sexually harassing the employee", "if the employee is sexually harassed at the workplace by another employee or third parties and the necessary measures are not taken despite the employee notifying the employer" do not constitute psychological harassment when evaluated individually, but the repetition of such behaviours over a period of time will qualify such behaviours as psychological harassment. In the presence of these situations, the employee may terminate the employment agreement for just cause.

Discrimination Compensation Claim

If the psychological harassment at the workplace is carried out with the motive of discrimination by using the language, race, gender, political opinion, philosophical belief, religion, sect, disability and similar reasons; in other words, if psychological harassment is used as a means of discrimination, which is included in Article 5 of the Labour Code under the title of "principle of equal treatment", the employer's equal treatment obligation is violated. In such a case, the employee who has been subjected to psychological harassment at the workplace may claim "discrimination compensation" as stipulated in Art. 5/f 6 and 7 due to the violation of the said obligation. Pursuant to Art. 5/f 6 of the Labour Code, discrimination compensation is up to 4 months' wages of the employee who has been discriminated against. In addition, the employee may also claim his/her deprived rights pursuant to the same article.

Material and Moral Compensation Claim

Within the scope of liability arising from breach of contract, the employee who is subjected to psychological harassment may claim financial compensation from the employer in accordance with the provisions of Article 112 et seq. of the TCO. In this case, the judge will determine the scope and payment method of the compensation, taking into account the necessity of the situation and the gravity of the fault. The victim may claim non-pecuniary damages from the perpetrator, provided that he/she demonstrates the appropriate causal link between the damage he/she has suffered and the psychological harassment behaviors he/she has been subjected to. The most important issue for the claim for moral compensation is the violation of personal rights.

Persons who are subjected to psychological harassment may be harmed in terms of physical integrity and/or economic existence, as well as moral damage. Examples of material damages may include salary deductions imposed on the victim with the intention of psychological harassment, practices of giving lower wages/premiums than their peers, treatment expenses due to deteriorated health, loss of income in case of loss of job due to psychological harassment. In cases of psychological harassment, claims for financial compensation do not constitute a very large item. However, if the harassed employee has lost his/her health and received treatment due to this reason, the treatment and medication costs will be included in this scope.

Protective Lawsuits

Protective actions are actions to be filed by the aggrieved employee, whose personal rights are attacked by psychological harassment at the workplace, to put an end to the attack, to prevent the attack and to determine the unlawfulness of the attack in accordance with Article 25 of the Civil Code. The employee who is subjected to psychological harassment will be able to protect himself/herself by filing the aforementioned lawsuits. The common feature of these lawsuits is that they are not related to property.

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.