We believe that evaluations in terms of the continuation of work, should be done in accordance to Labour Laws protection of employee, interpretation in favour of the employee, termination being last resort principles, with equitable, objective and good faith practices for both the employer and the employee. In this context, our opinion is that it would be appropriate for employers to implement the following practices considering the concrete situations in the workplaces, if possible, by following the priority order stated:

  • Remote working
  • Paid leave
  • Unpaid leave
  • Compensatory work
  • Short-term work
  • Implementation of article 40 of the Labour Law no. 4857
  • Unpaid leave
  • Termination of employment contract

Remote working

Due to the extraordinary period that is being experienced, at the extent that the nature of the work allows, it may be possible for the employee to work from home for a temporary period. However, this is not a vested right; following the end of the extraordinary period, employees must start working at the workplace again. The opinion that the employer can implement remote working without written consent from the employee in this period, is dominant. However, it will undoubtedly be a more accurate approach to put the situation in writing.

Paid leave

In line with the principle of using paid annual leaves within the year that the employee deserves, it is equitable that the employees use paid annual leave, leaving at least 10 days out for every year of the employees future paid annual leave right (for example, in a way that the next 3 years paid leave cannot be taken) and especially from the past years. In the current situation, our opinion is that within the scope of his/her management right, the employer may make the employee use paid annual leave and the employee does not have the right to refuse.

Unpaid leave

It can be used regarding the employees written request and at the extent that the nature of the work allows. However, the employer cannot make the employee use unpaid leave without their direct request and/or malicious intent. Otherwise, it allows the employee to terminate the employment contract with good reason. It is also possible to count this as an employment termination.

Short-term work

Under Annex 2 of the Unemployment Insurance Law No. 4447, if weekly working hours at the workplace is reduced temporarily or ceased completely due to general economic, sectoral or regional crisis or compulsory reasons, employers can have short term work done by the employees, not exceeding (three) months. The employer must give written notice to the General Directorate of Turkish Employment Agency (İŞKUR) and collective labour agreement party labour union if any.

Compensatory work

It is work that is to be compensated by the employee, which he/she hasn't performed due to compulsory reasons or when the time that has been worked is considerably lower than normal working time or the operations have ceased entirely or on the days before or after the national and public holidays or where the employee is granted time off upon his/her request, except for permissions foreseen in The Turkish Labour Law No. 4857, employment contracts and collective labor agreements and legal permissions. The employer who will have the compensatory work done, must clearly state the reason for which this work is based on (a significant decrease in work, operations being stopped entirely, etc.) and inform the relevant workers of the date to start work. Compensatory work is carried out within 4 months following the end of the compulsory reason and start of the normal working period in the workplace. (This period has been extended to 4 months within the scope of the latest measures. However, the President has been given the authority to double this period. The law no. 7226, which is the legal regulation, was adopted on 24.3.2020 and not yet published in the Official Gazette when we prepared this article.) Compensatory work cannot exceed 3 hours a day, provided that maximum working hour of eleven (11) hours per day is not exceeded. Compensatory work cannot be done on holidays.

Implementation of Article 40 of the Labour Law no. 4857

Under this article, if compelling reasons occur, which causes the work to cease or prevent the workers from working for more than 1 (one) week, the employment contract is suspended for this period and the worker is paid half salary during the period.

Termination of employment contract

Termination is a situation that can be considered when economic conditions push hard, businesses start to take serious risks, other measures for employees have been taken (such as removing overtime, partial work, substantial change in salary reduction, paid leave, unpaid leave, etc.) and the situation becomes last resort economically and actually.

Unpaid leave

Unpaid Leave is a special implementation of the suspension of an employment contract. Especially in times of economic crisis, employers aim to mitigate the negative effects of the economic conjuncture on the business by taking workers on unpaid leave.

Thus, the Supreme Court also states that the employer cannot go to termination of the employment agreement directly due to temporary setback of acceptance performance, mild measures that can prevent termination should be tried under the principle of termination being the last resort (ultima ratio).

In the justification of Article 22 of The Labour Law No. 4857, attention is also drawn to targeting the continuation of the contract by making changes in the working conditions of the worker, even if valid just causes are available, "in the presence of certain negative conditions, instead of direct termination of the contract of the worker, by making certain changes in the working conditions, to maintain the business relationship".

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.