Organizations may occasionally be required to conduct internal investigations due to issues such as employee misconduct, ethical breaches, or compliance concerns. However, these processes—particularly when they result in disciplinary action or termination—must be managed with careful attention to labor law and personal data protection obligations. Ensuring respect for employee rights and adherence to legal requirements is essential to minimizing potential disputes and mitigating legal liability. A legally sound and fair approach is therefore critical throughout the investigation process.
Introduction
Companies across various sectors occasionally need to conduct internal investigations. These internal investigations may stem from a range of causes, such as ethical breaches, regulatory concerns, or employee misconduct. Depending on the nature of the case, an internal inquiry may result in disciplinary action, including the termination of an employment contract. However, such actions carry potential legal consequences, particularly within the framework of Turkish labor law and personal data protection regulations. This article explores the key legal aspects companies should consider when conducting and concluding internal investigations, focusing on labor disputes and data protection obligations in Türkiye.
Post-Investigation Considerations: Labor Disputes
Under Turkish labor law, the termination of an employment contract following an internal investigation is highly sensitive and must be handled with diligence and legal precision. The grounds for termination and the consequences differ depending on whether the dismissal is based on valid reasons or just causes, as stipulated under the Labor Law No. 4857 ("Law").
According to Article 18 of the Law, employees who are protected by job security—those working under an indefinite-term contract for at least six months at a company with thirty or more employees—may only be dismissed for a valid reason. Valid reasons typically relate to an employee's performance, behavior, or the operational needs of the business. Although the law does not provide an exhaustive list, case law and legal practice generally accept that a significant loss of mutual trust—demonstrated by substantiated misconduct—can constitute a valid ground for dismissal.
In contrast, Article 25 of the Law sets out specific instances in which an employer may immediately terminate an employment contract without prior notice, based on just cause. These include scenarios involving immoral, dishonorable, or malicious conduct, as well as serious health issues or imprisonment. If an internal investigation uncovers such behavior—for example, theft, harassment, or gross disloyalty—an immediate dismissal may be both lawful and appropriate.
Importantly, internal investigation reports often play a pivotal role in potential litigation. In the event of a wrongful termination lawsuit, the report can serve as crucial evidence to justify the employer's decision by later demonstrate that the termination was justified and not arbitrary, in accordance with the rightful termination provisions under Article 18 and 25 of the Law. Thus, the manner in which evidence is gathered is just as critical as the evidence itself and, therefore, employers shall always be mindful of the employee's rights during the investigation process. Any form of mobbing, coercion, or psychological pressure risk invalidating employee by an investigator has the potential to undermine an employee's free will, rendering any resultant statements inadmissible and expose the to claims for moral and material damages.
In cases where the court finds that a termination was not based on valid or just cause, the employer may be ordered to reinstate the employee or pay compensation ranging from four to eight months' salary. Moreover, if the integrity of the investigation report is compromised as a result of the prohibited investigation methods, the employee may be entitled to claims for material and moral damages under civil law. Additionally, even if termination does not occur, the employee may terminate its employment for just cause if the investigation procedure violates principles of morality and good faith, thereby adversely affecting the employee the employer may face additional liability under civil law.1
When an investigation yields insufficient evidence to justify a dismissal, yet the employer's trust in the employee is significantly eroded, a more pragmatic solution may be a mutual termination agreement. This option becomes particularly viable in instances where the investigation results in only abstract suspicion of misconduct yet significantly undermines trust in the employer. This route also avoids contentious litigation while respecting both parties' interests, especially in cases where only indirect or inconclusive findings exist.2
Post-Investigation Considerations: Right to Privacy & Personal Data Protection
A critical dimension of internal investigations in Turkey involves the protection of employees' personal data and privacy rights, which are safeguarded by both the Constitution and the Personal Data Protection Law ("PDPL").
Routine investigative methods such as reviewing corporate devices or emails may inadvertently capture private data. While these practices may serve the employer's legitimate interest, they must be balanced against the employee's fundamental rights, particularly as outlined in Article 20 of the Turkish Constitution, which guarantees the right to privacy and the protection of personal data.
Under the PDPL, data processing generally requires explicit consent from the data subject. However, Article 5(2)(f) of the PDPL allows exceptions when data processing is necessary to pursue the legitimate interests of the data controller—provided that such interests do not infringe upon the fundamental rights and freedoms of the employee. This legal balancing act requires employers to ensure that investigations remain proportionate to their purpose, consistent with Article 4 of the PDPL.
The Constitutional Court has issued several key decisions elaborating on these principles. According to its rulings, for an employer's access to an employee's electronic communications to be lawful, the following criteria must be met:
- A legitimate and legal reason must justify the inspection.
- The employee must be informed in advance of potential monitoring.
- The scope of the examination must be proportionate to the purpose.
- There must be no alternative method to achieve the same objective.
- The investigation must be limited in scope and purpose.
In its decision published in the Official Gazette on 14.10.2020, the Constitutional Court found a violation of the applicant's rights, reasoning that the employer had accessed the employee's corporate e-mail account without prior notification, and the investigation exceeded its stated purpose. The court held that the same goal could have been achieved by less intrusive means, such as witness testimony.
In another Constitutional Court decision published in the Official Gazette on 15.02.2021, the applicant employee claimed that his right to personal data protection was violated due to the examination of his corporate e-mails by the employer. However, the Constitutional Court ruled that the information had been provided since it was stipulated in the employee's employment contract that the corporate e-mail allocated to him would be used only for business purposes and that this account could be inspected by the employer without notice. In addition, since the examination remained within the purpose and other examination methods were also used, the Constitutional Court ruled that no violation had occurred and the application was rejected.
Therefore, at this point, it is important for companies to fulfill their obligations arising from PDPL within the scope of internal investigations, to inform employees in advance, if possible through employment contracts or company policies, to limit the purpose of the investigation and to use other means of investigation in accordance with the decisions of the Constitutional Court.
Conclusion
Internal investigations naturally involve potential legal risks for organizations, especially when sensitive issues such as employee conduct or regulatory compliance are involved. To mitigate these risks, companies must proactively identify legal implications and implement clear policies and procedural frameworks that govern each stage of the investigation. A best-practice approach includes detailed protocols that define the investigative process—from initial intake to resolution—with a focus on fairness, consistency, and minimizing legal exposure. It is equally important to ensure that employees are informed of the process, their rights are protected, and all actions comply with relevant legal standards, thereby fostering a culture of accountability and compliance.
References
4857 Sayılı İş Kanunu, Madde 24/II. (2003, 06 10). Retrieved from T.C. Cumhurbaşkanlığı Mevzuat Bilgi Sistemi: https://www.mevzuat.gov.tr/mevzuat?MevzuatNo=4857&MevzuatTur=1&MevzuatTertip=5
Erbaş, R. (2023, 01). "Compliance" Fenomeni Ekseninde Şirket İç Soruşturmalar ve Türk Ceza Hukukundaki Olası Sonuçları. Retrieved from ResearchGate: https://www.researchgate.net/publication/366974405_Compliance_Fenomeni_Ekseninde_Sirket_Ic_Sorusturmalar_ve_Turk_Ceza_Hukukundaki_Olasi_Sonuclari
TEİD İç Soruşturmalar Rehberi. (2020). Retrieved from TEİD: https://teid.org/inguide-rehberler-serisi/ic-sorusturmalar-rehberi/
Footnotes
1. (4857 Sayılı İş Kanunu, Madde 24/II, 2003)
2. (TEİD İç Soruşturmalar Rehberi, 2020, pp. 64-65)
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