Employment 2023 Comparisons

Distinction Between Blue-Collar and White-Collar Employees

In the business world, in order to distinguish employee groups, employees are divided into groups according to the colour of their collars. In Türkiye, as in the business world, the terms white-collar and blue-collar employees are used.

Blue-collar workers who work in corporations are engaged in the production of services or goods; work on the land or in the field; or do cleaning, security, maintenance or repair work; using physical ability in addition to mental ability. White-collar employees are people who have a high level of education, who rely on mental ability rather than physical labour, and who work as lawyers, accountants, bankers, architects, real estate agents, business consultants, and in sales and service departments, etc.

Employers’ Equal Treatment Obligation

Turkish Law does not make any distinction between employees. On the contrary, employers are obliged to treat all employees equally. The basis of employers’ equal treatment obligation is the principle of equality under Article 10 of the Constitution and the prohibition of discrimination under Article 5 of Labor Law No 4857 (the “Labor Law”).

Accordingly, all employers are under an obligation to treat all groups of employees equally. In this context, blue-collar and white-collar employees have the same rights and freedom, such as working hours and overtime limits, social security, travel and meal allowances.

In accordance with Article 5, paragraph 6 of the Labor Law, where there is a breach of the equal treatment obligation, the employer is obliged to pay discrimination compensation in the amount of up to four months’ salary. In a precedent decision, the appellate court decided that the distinction between white-collar and blue-collar employees did not arise from the Labor Law, but from the practice and payment of overtime wages to blue-collar employees over the normal wage of white-collar employees, which was contrary to the equal treatment obligation (Turkish Appellate Court’s 9th Civil Chamber Case No 2012/36446, Decision No 2014/27623, dated 23 September 2014).

Types of Employment Contract

Articles 8–16 of the Labor Law regulate the types of employment contract in Türkiye, as follows:

Indefinite-term employment contract

Pursuant to Article 11 of the Labor Law, an indefinite-term employment contract is deemed to be established in cases where the employment contract is not made for any fixed period of time.

Fixed-term employment contract

Pursuant to Article 11 of the Labor Law, a fixed-term employment contract is deemed to be established in cases where the employment contract is agreed for a certain period of time and is subject to objective conditions such as the completion of a certain task or the occurrence of a certain phenomenon.

Full-term employment contract

Pursuant to Article 13 of the Labor Law, the maximum weekly working time is 45 hours. If it is understood in the employment contract that 45 hours of work per week will be undertaken, or if there is no separate provision, the employment contract is deemed to be a full-time employment contract.

Part-time employment contract

Pursuant to Article 13 of the Labor Law, a part-time employment contract is deemed to be established if a working period of less than two thirds (30 hours) of the normal weekly working period of 45 hours is agreed.

Employment contract based on on-call working

Pursuant to Article 14 of the Labor Law, an employment contract in which it is agreed that an employee will fulfil the performance of work on a part-time basis in case of need is based on the principle of on-call working. The employer is unilaterally authorised to determine when the employee will work. If the employer does not determine for how long the employee will work within a time period such as a week, month or year, the weekly working time is deemed to be agreed as 20 hours.

Employment contract based on remote working

Pursuant to Article 14 of the Labor Law, an employment contract based on remote working is deemed to be established if the employee works remotely in their own environment.

Probationary employment contract

Pursuant to Article 15 of the Labor Law, the parties involved in an employment contract may decide to have a trial period working together. Pursuant to the relevant article, the trial period may be a maximum of two months and, within this period, the parties have the right to terminate the employment contract without notice and without paying any compensation.

Team employment contract

Pursuant to Article 16 of the Labor Law, a team employment contract is established between an employer and an employee, on behalf of a team formed by more than one employee. In the team contract, the identity of each employee and the wage to be received must be specified separately and in writing.

Elements of an Employment Contract

Pursuant to Article 2 of the Labor Law, three basic elements must be included for a contract to be an employment contract. These are that the employee performs the work for the employer, in a dependable manner, and a wage is agreed in return.

Form of Employment Contract

Pursuant to Article 8 of the Labor Law, an employment contract is not subject to a special form unless otherwise stipulated in the Law. Therefore, it is possible to establish an employment relationship based on an oral agreement. In cases where there is no written contract, the employer is obliged to provide the employee with a written document within two months at the latest, which includes: general and special working conditions, daily or weekly working hours, basic wage and its supplements, the wage payment period, the duration of the contract if its duration is fixed, and the obligations of the parties in case of termination.

Employment contracts with a duration of one year or more must be in writing. In employment contracts, whether the contract is for a definite or indefinite period, the following must be clearly stated: the official information of the parties, the date of signing the contract, the amount and date of wage payment, a job description, the working hours and termination situations. Pursuant to Law No 1567 on the Protection of the Value of the Turkish Currency, employment contracts must be drafted in Turkish.

Pursuant to Article 63 of the Labor Law, the weekly working time is taken as the basis in determining the working time of employees and accordingly, a maximum of 45 hours of work can be done per week. Unless otherwise agreed, this period is equally divided into the working days of the week. The employer is authorised to distribute the weekly working time over certain days, provided that it does not exceed 11 hours per day.

It should be noted that 11 hours of working time per day is the upper limit, and if it is accepted that it can be distributed over certain days of the week, it will be necessary to determine the hours of work on the remaining days so as not to exceed the legal weekly working time.

Pursuant to Article 46 of the Labor Law, workers are given at least 24 hours of uninterrupted rest within a period of seven days, provided that they have worked on the working days. The employer pays the wage of the rest day to the employee as a full day.

Overtime Work and Overtime Wages

Exceeding 45 hours of work per week is considered overtime work. The employee may do overtime up to a maximum of 270 hours per year. For each hour of overtime work, the overtime wage is calculated by increasing the amount of the normal working wage per hour by 50%.

Pursuant to Article 9 of the Regulation on Overtime Work and Working for Excessive Periods, the written consent of the employee must be obtained in order to make the employee work overtime. The employee may withdraw their written consent to overtime work by giving 30 days’ prior written notice. Consent for overtime work can be obtained in writing during the conclusion of the employment contract or when there is a need for overtime work, according to the amendment dated 25 August 2017.

Specific Terms of the Part-Time Employment Contract

• Pursuant to Article 13 of the Labor Law, a part-time employment contract is in question if it is determined that the working time of the employee is significantly less than the working time of an equivalent employee on a full-time employment contract.
• Pursuant to Article 6 of the Working Hours Regulation, part-time work is defined as working two thirds of the equivalent work performed on a full-time employment contract.
• Work performed up to 30 hours per week, which corresponds to two thirds of the weekly working time of 45 hours, is considered part-time work.
• In a part-time employment contract, the relevant legal working time can be distributed over the days of the week or over certain hours of each day, in line with the common will of the parties within the scope of freedom of contract.

Minimum Wage

The minimum wage imposes certain obligations on employers under Article 39 of the Labor Law. Accordingly, the Minimum Wage Commission (the “Commission”) under the Ministry of Labor and Social Security must revise the minimum wage of employees working under an employment contract, whether covered by the Labor Law or not, every two years at the latest. However, due to the economic conditions in Türkiye, in practice, the minimum wage tariff is revised by the Commission every year or every six months. 

Minimum wage requirements

• According to Article 6 of the Minimum Wage Regulation titled “Determination of Wage”, the minimum daily wage must be determined for all lines of work.
• Employees may not be paid less than the minimum wage set by the Commission. Any provision contrary to this in the labour contract or collective bargaining agreement will be deemed invalid.
• The minimum wage may not be reduced due to social assistance provided to employees.

In the private sector, there is no state intervention in terms of compensation and raises.

Annual (Vacation) Paid Leave

Employees have the right to rest, which is regulated as a fundamental right of the individual in Article 50 of the Constitution. Pursuant to Article 425 of the Turkish Code of Obligations No 6098 (TCO), as long as the employment relationship continues, the employee cannot waive their right to annual paid leave in exchange for money or other benefits to be received from the employer, and cannot transfer it to another person.

In Article 53 of the Labor Law, annual leave periods are determined as minimum and can be arranged in favour of the employee. The employee is entitled to annual paid leave one year from the day the employee actually starts work. Pursuant to Article 56, other paid or unpaid leave or rest and sick leave granted by the employer during the year cannot be offset against annual paid leave.

Annual paid leave periods are determined as follows:

• 14 days for those who have worked between one and five years (including five years);

• 20 days for those who have worked more than five years and less than 15 years;

• 26 days for those who have worked for 15 years or more;

• workers aged 18 and under and workers aged 50 and over must be allowed 20 days of leave or more; and
• the annual paid leave periods of workers employed in underground work must be increased by four days.

National Holidays and General Holidays

The right of the employee not to work on national holidays and general holidays is a social right under the Turkish Constitution.

Maternity Leave

Pursuant to Article 74 of the Labor Law, female employees are required to take maternity leave for eight weeks before and eight weeks after childbirth, that is, a total of 16 weeks. In case of a multiple pregnancy, it is obligatory to take maternity leave for 18 weeks. If a female employee is in good health and her doctor approves, she can work at the workplace up to three weeks before the birth. In this case, the remaining maternity leave can be added to the postnatal period. If a female employee gives birth prematurely, the leave period that the female employee has not been able to take before the birth is added to the postnatal period. During maternity leave periods, the female employee is entitled to wages and supplements.

Right to unpaid leave in addition to maternity leave

A female employee is also entitled to unpaid leave as well as maternity leave. A female employee may request unpaid leave for up to six months after her 16-week maternity leave. If an employee requests this leave, the employer is obliged to grant it.

Pursuant to Article 74, paragraph 2 of the Labor Law, a female employee who gives birth to a child or who adopts a child under the age of three is entitled to the following unpaid leave from the end of her maternity leave for the purpose of caring for and raising her child:

• 60 days for the first birth;
• 120 days for the second birth; and
• for subsequent births, she is entitled to unpaid leave for 180 days, or to arrange a “working leave period” of 180 days.

During a working leave period, an employee works half of the weekly working time and is on unpaid leave for the other half (essentially, part-time work). An employee has the right to take leave for half of the working time or unpaid leave for up to six months. However, it is not possible to take both.

Breast-Feeding Leave

Female employees are entitled to a total of 90 minutes of breast-feeding leave per day to breastfeed their children under the age of one year. The employee herself determines when and for how long each breast-feeding break will be, as long as the total time taken amounts to no more than 90 minutes of her daily working time.

Sick Leave

Pursuant to Article 48 of the Labor Law and Article 18 of the Social Security and General Health Insurance Law No 5510, in the event of a report of incapacity to work due to illness, the Social Security Institution (SSI) will provide the employee with an incapacity benefit starting from the third day off work.

In the event that employees with a service contract receive a report of incapacity to work due to illness, the payment to be made by the employer for the first two days that the SSI does not pay them is regulated in Article 409 of the TCO. In this context, the employer’s obligation to pay wages continues if the employee has received an incapacity report.

Pursuant to Article 48, paragraph 2 of the Labor Law, in the event that employees with monthly wages receive a report of incapacity for work, the difference between the temporary incapacity for work allowance paid by the SSI and the employee’s wage must be paid by the employer. This rule applies to employees who are paid the same wage every month, determined in advance, regardless of the number of days in the month. Employees whose wages are determined daily or weekly will only be entitled to wages if they work.

In practice, during the inspections carried out by labour inspectors, in the case of temporary incapacity reports issued due to illness, it is examined whether only the wages of the first two days, which are not paid by the SSI, have been paid; if not, the first two days’ wages minus legal deductions are requested to be paid to the employee, and if the employer declares that it will pay, the employer is given time to remedy the deficiency.

Compassionate Leave

Employees may take paid compassionate leave depending on their special circumstances. This leave is regulated by the Additional Article added to the Labor Law by Law No 6645 on the Amendment of the Occupational Health and Safety Law and Certain Laws and Decree Laws. Accordingly, the employee is entitled to compassionate leave if they meet one of the following conditions:

• three days in case of marriage, adoption or the death of a parent, spouse, sibling or child;
• five days if their spouse gives birth; and
• in the treatment of a child with at least 70% disability or ongoing illness, the employee may request up to ten days of paid leave in whole or in parts within a year, based on a sickness report and provided that it is used only by one of the working parents.

Breach of Confidentiality and Non-disparagement Requirements

Under the terms of a confidentiality agreement with the employer, the employee is obliged to keep all data confidential. An employee’s breach of confidentiality and actions taken to discredit their employer are grounds for termination for just cause in accordance with Article 25 of the Labor Law.

An employee who knows the trade secrets of the workplace, such as production technology, know-how and practices, customer portfolios, etc, may damage the employer by using these trade secrets and relationships in their new workplace after the termination of their previous employment contract.

The obligation of the employee not to compete while the employment contract continues stems from the duty of loyalty. Therefore, there is no need to make a regulation while the employment contract is in place. After the expiry of the employment contract, the regulation regarding the non-compete obligation of the employee should be made separately.

Requirement for the Validity of Non-compete Clauses

The validity of a non-compete agreement is subject to certain conditions in order to protect the economic future of the employee within the scope of the right to work, which is one of the fundamental constitutional rights of the employee, and to protect their interests in this regard.

Although there is no provision in the Labor Law on this subject, the TCO lists the validity conditions in Articles 444–447:

Written non-compete agreement

Pursuant to Article 444 of the TCO, the parties must include a non-compete clause in the employment contract or conclude a separate non-compete agreement.

Limitation in terms of location

A limitation must be made as to the geographical location or region in which the employee must refrain from competing with their previous employer. The determining factor in this limitation is the previous employer’s area of activity, and it is important not to exceed this in terms of limitation of location. Beyond this area of activity, the employer does not have an interest that needs to be protected (Turkish Appellate Court’s 11th Civil Chamber Case No 2019/2050, Decision No 2020/5916, dated 16 December 2020).

Limitation in terms of time

Foreseeing in a non-compete agreement that an employee will refrain from acts of competition indefinitely would lead to the destruction of the economic future of the employee. Therefore, pursuant to Article 445 paragraph 1 of the TCO, it is stipulated that the non-compete agreement may be concluded for a maximum period of two years.

Limitation in terms of subject matter

The non-compete obligation of the employee should be limited to the field of activity of the company, and directly related to the work performed by the employee in the company.

Legal Consequences of Invalid Non-compete Regulation

Pursuant to Article 445 paragraph 2 of the TCO, a judge may limit a non-compete agreement that is excessively restrictive, in terms of its form, scope or duration, in an equitable manner by freely evaluating all the circumstances and conditions.

Enforcement of Non-compete Clauses

Pursuant to Article 446 of the TCO, if an employee violates a prohibition of competition clause, they are obliged to compensate the employer for all damages incurred as a result. If the employee is subject to a penal clause in case of breach of the non-compete clause, the employee may be released from their obligation by paying the relevant penalty, unless otherwise stipulated in the contract. However, the employee is obliged to compensate the employer for any damage exceeding the amount of the penalty. Provided that the employer reserves this right in writing, the employer may request termination of the breach of the prohibition, if its own interests are violated or threatened.

Non-solicitation Clauses With Reference to Employees

If an employee poaches another employee of the employer to work for a competitor company, this is regarded as behaviour that does not show integrity or loyalty.

A provision may be included in the employment contract, or it may be agreed after the termination of the employment contract, that the employee will not directly or indirectly encourage, or attempt to encourage or assist the employer’s other employees to quit their jobs, or the employer’s customers or business partners to terminate, renew or withdraw their contracts with the employer for a certain period of time, without the employer’s prior written consent, and that violation of this will result in a penalty for the employee concerned.

Non-solicitation Clauses with Reference to Customers

It is considered unfair competition for an employee to poach a customer by disparaging their employer and this constitutes a deceptive act and a violation of the rule of honesty. In the event that the employee does business by enticing the customer, the employment contract may be terminated for just cause, pursuant to Article 25/II of the Labor Law, and the damage incurred may be claimed from the customer in accordance with the Turkish Commercial Code.

The regulations that apply in the field of labour law are as follows.

Turkish Personal Data Protection Law No 6698 (“KVKK”)

The KVKK regulates the rules and obligations regarding the processing, protection, use and sharing of personal data and the processing activities of employers. When an employee is hired, a personal file is created which contains certain information about the relevant employee. The employer may only process and store the personal data of the employee by obtaining the explicit consent of the employee with the clarification text, provided that it complies with the qualifications of the data.

Electronic Communication Law No 5809

This regulates the use of electronic communication tools by the employee in the workplace and it also regulates the unauthorised intervention of the employer in the private communication of the employee, that is, it protects the privacy of employees’ electronic communication.

Occupational Health and Safety Law No 6331

Within the scope of the employer’s obligation to protect the health and safety of the employee, the processing of health data in the workplace and the protection of confidentiality are important. Since health data is private data, the KVKK law should be considered as a whole.

Turkish Criminal Code No 5237

Pursuant to Article 136 of the Turkish Criminal Code (TCC), violation of the confidentiality of personal data and the endangerment of data security are regulated as crimes. These offences are punishable by imprisonment from two to four years. An employer is therefore obliged to protect the data confidentiality of employees in accordance with the relevant legal regulations. An employer must be open and transparent about the processing and sharing of employees’ personal data, and it must respect privacy policies and only obtain the personal data with the employee’s consent.

Conditions of Employment of Foreign Workers

International Labor Force Law No 6735 (the “International Labor Law”) regulates the procedures and principles to be followed regarding work permits and exemptions to be granted to foreign nationals. The employment of foreign workers under Turkish law can be considered from the following two perspectives.

Employee’s perspective

• A foreign national who wants to work in Türkiye must obtain a work permit in order to work legally.
• Pursuant to Article 6, paragraph 3 of the International Labor Law, where it is stated in other laws or in agreements or international conventions to which Türkiye is a party that foreigners may work without a work permit, they may work without a work permit.
• It is not possible for foreigners to practise every profession within the borders of Türkiye. Restrictions have been imposed on certain professions, arts and business lines in Türkiye through special laws. The profession of lawyer is among the professions that cannot be practised by foreigners in Türkiye.

Employer’s perspective

• Employers must obtain permission to employ foreign employees.
• The limitation for the employer is the quota application:
1. it is obligatory to employ five Turkish citizens for each foreign employee in workplaces that employ foreign workers; and
2. in the entertainment, tourism, animation and organisation sectors, at least ten Turkish citizens must be employed before foreigners can be employed in jobs requiring expertise and mastery.
• The paid-in capital of a company applying for permission to employ foreign employees must be at least TRY100,000 or gross sales must be at least TRY800,000 or the previous year’s exports must be at least USD250,000.
• If the company partner is a foreigner, their capital share must be at least 20% but not less than TRY40,000.
• The amount of monthly wage declared to be paid to a foreign worker must be at a level compatible with the duties and competence of the foreigner.
• In associations and foundations, Turkish representative offices of foreign state airlines, the education sector and domestic services, the paid-in capital/gross sales/export amount and one to five rule are not applicable.
• Foreign workers with a work permit working in Türkiye will have the same basic working conditions and social rights as local workers.

Pursuant to the conditions in Articles 7, 8 and 9 of the International Labor Force Law, the work permit application is examined and concluded by the Ministry of Labor and Social Security.

Rejection of Work Permit Applications

Work permit applications are rejected in the following cases:

• they do not comply with the international labour policy;
• they contain false or misleading information and documents;
• the justification for the employment of foreigners is not considered sufficient;
• the desired jobs and professions are reserved by law for Turkish citizens;
• the foreign applicants do not possess the necessary qualifications and expertise; and/or
• the foreign applicants do not meet the evaluation criteria determined by the Ministry of the Interior, as stated in Articles 7, 15 and 54 of Law No 6458 on Foreigners and International Protection.

Foreigners who work in Türkiye without work permits are subject to an administrative fine of TRY3,527 if they are a dependent employee, and TRY7,057 if they work independently.

Work Permit

Documents required for application

Pursuant to Article 7 of the International Labor Law, work permit applications are made directly to the Ministry of Labor and Social Security in Türkiye and to the Turkish embassies or consulates-general in the country where the foreigner is a citizen or legally resides abroad. The documents required for the employment of foreign workers must be prepared separately by the employer and employee.

Documents to be prepared by the employer:

• activity certificate or tourism management certificate for a tourist facility;
• the relevant page from the Trade Registry Gazette showing the capital and shareholding status of the company;
• financials for the company certified by the tax office or certified public accountant; and
• authorisation via e-signature.

Documents to be prepared by the employee:

• the consular reference number for the overseas application;
• the residence permit for at least six months for a domestic application;
• a photocopy of the employee’s passport;
• a diploma or temporary graduation certificate; and
• a passport-size photograph.

Data Protection in Remote Working

In a teleworking relationship, an employer may obtain all kinds of personal data worthy of protection, through which the identity of the employee can be ascertained. The last paragraph of Article 14 of the Labor Law stipulates that the application regarding the protection and sharing of data will be determined in accordance with the Regulation on Remote Working issued by the Ministry of Labor and Social Security.

Pursuant to Article 11 of the Regulation on Remote Working, the employer must inform the remote worker in writing about the rules and legislation regarding the protection and sharing of data related to the workplace and the work performed, by determining the definition and scope of the data in the contract, and take the necessary measures to protect this data. The remote worker must comply with these rules.

Occupational Health and Safety in Remote (Tele-) Working

Pursuant to Article 77 of the Labor Law, the employer is obliged to take the necessary precautions to protect the health and physical integrity of the employee in the workplace. Pursuant to Article 417, paragraph 1 of the TCO, the employer must protect and respect the personality of the employee, take all necessary precautions to protect the psychological and physical integrity of the employee, and ensure order in the workplace in accordance with the principles of good faith. Pursuant to the continuation of the article, the employer is required to provide all tools and equipment, to ensure occupational health and safety.

Pursuant to Article 14, paragraph 6 of the Labor Law, the employer has an obligation to provide information, all the necessary training regarding the work to be performed by the remote worker, and to take precautions regarding work equipment. Since the employer does not have the opportunity to directly supervise and observe the remote worker, the employer is obliged to carry out periodic health surveillance of the worker.

In the event that the employer violates these obligations, and the employee dies, or their bodily integrity is damaged, or their personal rights are violated, compensation for the related damages and liability arising from breach of contract arise. 

I have moved the text from this section to 1.3 Working Hours and 1.5 Other Employment Terms.

This section on sabbatical leave is intended to cover a period of paid leave granted to an employee for the purposes of study or travel. This often applies to university lecturers or others who need time off to further their studies. Many countries do not have legislation on this. Please could you indicate in your response if sabbatical leave is regulated in Türkiye and, if not, whether those who need to study further can take unpaid leave?

New Types of Work

Although not explicitly regulated in Turkish legislation, some types of work have developed in practice with the innovations and needs of modern life.

Desk sharing

This is generally used in modern working environments and flexible working models, especially in corporate companies or startups. With the opportunity for employees to use the same desk or workspace at different time periods, employers aim to use their office space more effectively. In this type of work arrangement, which is especially convenient for the employer who is obliged to provide a working environment, the employer should also consider the rights and responsibilities of its employees. For example, the employer should take the necessary measures in accordance with this arrangement in matters such as employee privacy and protection of personal data. This working arrangement can be implemented on the basis of mutual agreement between the employer and the employee.

Hybrid practice

This is a working arrangement in which the employee comes to the office on certain days and performs their work and responsibilities remotely on other days. In this regard, should the employer wish to change this arrangement, they will first need to obtain the employee’s consent, as this could be regarded as a change to one of the essential elements of the contract.

A union is defined in Article 2/1-ğ of Law No 6356 on Trade Unions and Collective Bargaining Agreements (the “Trade Unions and Collective Bargaining Agreements Law”) as a legal entity formed by at least seven workers or employees to protect and develop their common economic and social rights and to represent their interests in labour relations. In order for a community to be a union, it must be freely established and independent, with a common purpose, and must be run in accordance with democratic principles.

Trade unions play an important role in protecting workers’ rights, representing workers’ demands and improving workplace conditions. Unions are non-government organisations established to protect, develop and represent the economic and social rights of workers and public officials, and provide support by representing their members in areas related to their independent movements. In addition to the task of representing their members, the unions negotiate with employers in order to protect the rights and interests of their workers and to aim to find common ground.

The union negotiates collective bargaining agreements between employees and employers to regulate working conditions and the rights of workers in the sector as much as possible, in favour of the workers. The union aims to educate and inform its members on issues such as labour law, and occupational health and safety. It takes action against injustice, discrimination or violations of occupational health and safety in the workplace.

The Role and Forms of Representative Institutions

Unions

Unions are one of the most common labour representative bodies. They represent the interests of their worker members, and negotiate and fight with employers for workers’ rights.

Occupational health and safety representatives

These are elected or appointed persons who are responsible for protecting the interests of workers in occupational health and safety issues in the workplace, and for ensuring safe working conditions in co-operation with the employer.

Workplace representatives and assemblies

Workplace representatives or workplace assemblies may be established in large workplaces. Workplace assemblies are bodies that elect workers’ representatives and hold discussions on workplace issues. The powers of worker representatives vary according to the size of the employer, the number of workers and the characteristics of the workplace.

Collective Labour Agreement and Definition

Pursuant to Article 2 of the Trade Unions and Collective Bargaining Agreements Law, a collective bargaining agreement is a contract concluded between a union and an employers’ union, or an employer who is not a member of a union, in order to regulate matters relating to the conclusion, content and termination of the employment contract.

Legal Nature of Collective Labour Agreements

The right to conclude collective labour agreements is regulated in Article 53 of the Turkish Constitution. This is subject to the limitations set out in Article 13 of the Turkish Constitution. Therefore, the right to conclude collective bargaining agreements may only be restricted by law, without prejudice to their essence, for the reasons set out in the relevant articles of the Turkish Constitution.

Collective bargaining agreements are formed by the mutual wills of labour unions, which are private law legal entities, and employers’ unions, which are also private law legal entities, or the employer, which is a legal entity or a real person. The matters regulated by these agreements are essentially related to private law. However, the fact that the parties are authorised to set mandatory rules on employment contracts with the normative part of collective labour agreements, distinguishes collective labour agreements from other private law agreements.

The Necessity to Evaluate Motivation (Performance) in the Workplace

From the employer’s point of view, “performance appraisal” is applied to comparatively examine the utilisation of company resources, to determine individual and collective training needs, to guide wage policies and to evaluate the employability of employees. Performance appraisal is necessary to motivate employees, to distinguish between employees, to reward deserving employees, to determine rational and objective wage increases, to enable employees to evaluate their own performance by providing feedback, and to analyse the causes and consequences of poor performance.

Termination of the Employment Contract

An employee who has been working in the same workplace, with at least 30 insured employees, for at least six months on an indefinite-term employment contract and who is not the employer’s representative is subject to job security provisions, according to Article 18 of the Labor Law. In order to terminate the employment contract of an employee subject to job security, certain conditions must exist.

The employment contract can be terminated for two different reasons, valid or justified. In order to terminate for valid reason, it is mandatory to specify a reason arising from the employee’s competence or behaviour or the requirements of the enterprise, workplace or business. In order to terminate the employment contract due to an employee’s competence, a performance evaluation system must be stipulated and termination must be a last resort.

Termination of the employment contract for valid reason and procedure

Article 18 of the Labor Law clearly regulates the circumstances that do not constitute a valid reason. Pursuant to Article 19 of the Labor Law, the employer is obliged to notify the employee of termination by clearly and precisely stating the reason for termination in writing. Pursuant to the second paragraph of the same article, the employee’s employment contract cannot be terminated for valid reasons due to the employee’s competence or behaviour without obtaining their defence against the allegations. Otherwise, pursuant to Article 20 of the Labor Law, the employee has a right to file a reinstatement lawsuit within one month from the notification of the termination notice.

Termination of the employment contract for just cause and procedure

In the event that one of the reasons stated in Articles 24 and 25 of the Labor Law exists, the parties may terminate the employment contract immediately without any notice and any compensation. Pursuant to Article 26 of the Labor Law, the parties must exercise the right of termination for just cause in cases that do not comply with the rules of morality and good faith as set out in Articles 24 and 25 within six working days, and in any case within one year from the date of learning of the event. Otherwise, the period in question is a limitation period and this right cannot be exercised after this period has expired.

Definition and Procedure of Collective Dismissal

The termination of the employment contract collectively or in groups by the employer within a certain period of time is referred to as “collective dismissal”. In Article 29 of the Labor Law, collective dismissal refers to the following proportions of employees:

• if there are between 20 and 100 workers in the workplace, at least ten workers;
• if there are between 101 and 300 workers in the workplace, at least 10% of the workers;
• if there are 301 or more workers in the workplace, at least 30 workers.

Pursuant to Article 17 of the Labor Law, if these employees are dismissed on the same or different dates within a one-month period, this will be considered a collective dismissal.

The employer is obliged to notify the Turkish Employment Agency, the regional directorate and workplace union representatives at least 30 days in advance of its intention to terminate the employment relationship with the employees collectively as a result of economic, technological, structural and similar reasons, as a result of the workplace or business requirements. Within the scope of the employer’s obligation to inform, it is mandatory to include the reasons for the layoff, the number and groups of workers who will be affected, and the time period in which the termination of employment will take place. Following this notification, meetings between the employer and the workplace union representatives must be held and a minute must be issued showing that the meeting was held.

If the employer wishes to recruit new employees for the same type of work within six months of the finalisation of the collective dismissal, they are required to preferably contact those who are qualified for the job but were laid off. Where a collective dismissal is in violation of all these procedures, an administrative fine of TRY450 for each employee is stipulated in accordance with Article 100 of the Labor Law.

Notice Periods for Termination

In termination for just cause, the employment contract may be terminated immediately without a notice period.

in indefinite-term employment contracts where there is termination for valid reason, the employee must be notified before termination. Pursuant to Article 17 of the Labor Law:

• an employee whose employment has lasted less than six months has a two-week notice period;
• an employee whose employment has lasted between six months and 18 months has a four-week notice period;

• an employee whose employment has lasted from 18 months to three years, has a six-week notice period; and

• an employee who has been employed for more than three years, has an eight-week notice period.

Employer’s Obligation to Pay Severance Pay

The regulation on severance pay is included in Article 14 of the former Labor Law No 1475. Severance pay is paid to the employee in the amount of 30 days’ salary for every full year of employment in a continuous contract from the date the employee started work.

Employer’s obligation to pay severance pay in case of termination of employment

• The employee is entitled to severance pay if the employment contract is terminated by the employer, except in cases where the employee has not complied with the rules of morality and good faith (Labor Law 25/II).
• The employer has the obligation to pay severance pay in the case of termination for valid reason (but not for just cause), as well as the obligation to pay notice pay where the employer wishes to terminate the employment contract without complying with the notice periods.

Employer’s obligation to pay severance pay in case of voluntary termination of employment

• If a female employee gets married and terminates her employment contract within one year, the employer is obliged to pay severance pay.
• If a male employee terminates his employment contract due to military service, the employer is obliged to pay severance pay.
• If an employee terminates the employment contract in order to receive age, retirement or disability pension from the institutions or funds established by law to which the employee is affiliated, the employer is obliged to pay severance pay.

Grounds for Termination by the Employer for Just Cause Under the Labor Law

A fixed or indefinite-term employment contract may be terminated immediately by the employer without prior notice if there is just cause, as set out in Article 25 of the Labor Law. Just cause includes:

• health reasons –
1. a worker’s illness or disability that is the worker’s own fault;
2. a worker’s incurable illness; or
3. other health reasons preventing the worker from working;
• violations of the rules of morality and good faith, and so on –
1. misleading of the employer by the employee;
2. the employee’s words and behaviour have been dishonourable and lacking integrity;
3. sexual harassment by the employee;
4. teasing and drunkenness on the part of the employee;
5. the employee’s behaviour has been incompatible with truthfulness and loyalty;
6. the employee has committed a crime at the workplace, but has not been suspended;
7. absenteeism of the employee;
8. failure of the employee to perform a task despite being reminded; and/or
9. the employee has compromised the safety of the workplace or damaged the employer’s property;
• compelling reasons; and/or
• detention or arrest of the employee.

Grounds for Termination by the Employee for Just Cause Under the Labor Law

A fixed or indefinite-term employment contract may be terminated by the employee immediately, without prior notice, in the presence of four groups of justified reasons under Article 24 of the Labor Law. These include:

• health reasons –
1. performance of the work poses a danger to the health and life of the worker; or
2. the employer or another employee contracts a contagious disease or a disease incompatible with the employee’s work;
• violations of the rules of morality and good faith and the like –
1. the employer has misled the employee on the essential points of the contract;
2. the employer’s words and behaviour affect the honour and integrity of the employee or a family member;
3. the employer harasses or intimidates the employee or members of the employee’s family, or encourages or requires the employee to behave against the law or to commit a crime punishable by imprisonment;
4. sexual harassment of a worker by another worker or third parties;
5. payment of the worker’s wage in contravention of the law and the contract;
6. non-enforcement of acceptable working conditions; and/or
• compelling reasons.

Exercise of the Right to Termination for Just Cause and Legal Consequences

How to exercise the right to termination for just cause

Pursuant to Article 435 of the Turkish Code of Obligations and Article 19 of the Labor Law, the party terminating the employment contract for just cause must notify the reason for termination in writing. However, since Article 19 is not included in the last paragraph of Article 25 of the Labor Law, the court of cassation considers the written notice of termination as a condition of proof. In the event that the legal regulation on which the employer relies in the termination notice is incorrect, the appellate court is of the opinion that the court should evaluate which paragraph of the relevant article the incident falls under.

Period for exercising the right to termination for just cause

The six-day working period starts from the day following the day on which the incident occurred. Where an employee works on Saturdays, Sundays and general holidays at the workplace, these days are counted as working days. If the employer is a legal entity, an inspector’s investigation and the discussion of the incident by the disciplinary board does not start the period. The period of six working days starts from the date the authority authorised to terminate the employee’s employment learns about the incident (Appellate Court General Assembly of Civil Chambers Case No 2015/1046, Decision No 2017/535, dated 22 March 2017). The one-year period starts from the day the incident occurred.

Legal consequences of termination for just cause

The declaration of will for termination for just cause will be effective as soon as it reaches the other party. The employment contract between the parties will be terminated prospectively and with the termination, new rights and obligations will arise, such as the employer’s obligation to pay the wages and annual leave fees that the employee deserves and to provide a work certificate. If the employment contract is terminated for just cause, the employer does not pay severance pay and notice pay to the employee. In addition, the employer has the right to demand compensation for the damages incurred.

Mutual Rescission (İkale) Agreement

Definition of a mutual rescission agreement

The parties have the freedom to conclude a contract as well as the freedom to terminate the employment contract by concluding a contract. Although it is not explicitly regulated, as a result of the freedom of contract, the agreement between the employer and the employee to terminate the employment relationship is called a rescission agreement in labour law. Since the termination of the employment contract is realised by concluding a new contract, the execution, scope and legal nature of the new contract are subject to the general principles of the TCO. Employment contracts of definite and indefinite duration can be terminated with a rescission agreement, regardless of their duration.

Necessary conditions for a valid mutual rescission agreement

Full payment of wages and benefits measurable in money to the employee

Pursuant to Article 32 paragraph 6 of the Labor Law, in the event of termination, the employer is obliged to pay the employee’s wage and all benefits measurable in money arising from the contract and the Law in full. The benefits of the employee that can be measured in money include items such as premiums, bonuses, in-kind and in-cash social benefits, vacation pay and overtime pay. When the employment contract is terminated with a mutual rescission agreement, the value of the employee’s remaining annual leave must be calculated and paid over in the last wage.

Providing reasonable benefit to the employee

One of the conditions for the validity of the rescission agreement is reasonable benefit. It is defined as the employee obtaining an extra benefit with the mutual rescission agreement. The reason for this is that with the mutual rescission agreement, although the employee will benefit from unemployment allowance, the employee will not be entitled to severance pay or notice pay, and will not be able to file a reinstatement lawsuit. The parties may, however, agree that severance and notice pay will be paid.

Reasonable benefit assessment is made according to which side the offer of rescission comes from. If the offer of rescission comes from the employer, an additional benefit is sought to be provided to the employee. In this case, the employee must be provided with a reasonable benefit of at least four months’ wage. If the termination offer comes from the employee, the reasonable benefit is not required (the 9th Appellate Court Civil Chamber, Case No 2016/32059, Decision No 2017/22085, dated 21 December 2017).

Release Agreement

Release agreements, as they are called in labour law, are regulated in Article 420 of the TCO. The validity conditions of the release agreement are as follows:

• the release agreement must be in writing;
• one month must have elapsed since the termination of the employment contract;
• the agreement must clearly specify the type and amount of the receivable, subject to the release; and
• the payment must be made in full and without omissions through the bank.

Pregnant and Postpartum Employees

Employees who are pregnant or who have recently given birth cannot be dismissed solely on the grounds of pregnancy. Article 17 of the Labor Law clearly regulates that a pregnant employee cannot be dismissed, for valid reasons. In addition, the employer is obliged to provide suitable conditions in order to protect the employee during pregnancy and to ensure that they are comfortable.

Disabled Employees

Pursuant to Article 30 of the Labor Law, employers are obliged to employ 3% disabled persons in private workplaces where they employ 50 or more employees, and 4% disabled persons per 50 employees in public workplaces. While determining the number of disabled people required to be employed, the total number of employees working in different workplaces of the employer within the borders of the same province is taken into account.

A disabled employee must be employed and dismissed by the employer without discrimination. If the employer dismisses a disabled employee due to disability, the employer is obliged to pay compensation in the amount of four months’ wages. In such a case, in addition to compensation, the employer will have to pay notice and severance pay.

Employees Fulfilling Their Military Service

Pursuant to Article 14 of the Labor Law, an employee may be entitled to severance pay if the reason for leaving the job is military service. Pursuant to Article 31 of the Labor Law, employees who leave their jobs due to any military or legal duty have the right to notify the employer if they wish to return to work within two months following the end of this duty.

The employer is obliged to hire the employee immediately if there is a vacancy in their old job or similar jobs, if not, the employee must take the first job to be vacated. If the employer fails to reinstate the employee within two months after military service, the employer must pay the employee compensation in the amount of three months’ salary.

Trade Union Members and Worker Representatives

Pursuant to Article 24 of the Trade Union Law, trade union representatives’ employment contracts cannot be terminated unless there is just cause and the reason is clearly and precisely stated in writing.

Child Labourers

As a rule, it is forbidden to employ children under the age of 15. However, it is regulated in Article 71 of the Labor Law that children who have reached the age of 14 and have not completed their compulsory primary education may be employed in light work in a way that does not interfere with their physical, mental, social and moral development, or the attendance of those who wish to continue their education. Employers must comply with restrictions and prohibitions on working hours in order to avoid administrative fines.

Unfair/Invalid Termination

Termination of the employment contract by the employer in violation of the law is unfair termination. If the employer uses the right of termination in an unlawful manner, it is concluded that the employment contract has been terminated unfairly and the termination is deemed invalid.

Pursuant to Article 20 of the Labor Law, if the employee claims that no reason was given for the termination of the employment contract or that the reason given was not valid, the employee may apply for mandatory mediation with a request for reinstatement within one month from the notification of the termination notice. In case of failure to reach an agreement, the employee may file a re-employment lawsuit in the labour courts within two weeks from the date of the final report.

Burden of proof in unfair/invalid termination claim

In labour lawsuits, the employer must prove that they terminated the employment contract based on just cause.

Legal consequences of unjust/invalid termination

• If the employee claims that the employment contract was not terminated within the prescribed period for termination for just cause and the employer cannot prove otherwise, the termination is deemed invalid. In this case, if the employee has filed a lawsuit for reinstatement, they must be paid for the idle time and if they are not reinstated, they must be paid compensation for non-reemployment. In addition, the employee is entitled to severance and notice pay.
• If the employment contract was terminated for just cause, even though there was no action of the gravity of termination for just cause, and if the reason for termination constitutes a termination for valid reason, the court will decide that the termination was made for valid reason. In this case, the employee is also entitled to severance and notice pay.
• If the employment contract was terminated for a valid reason even though there was no action that constituted a termination for valid reason, the court will decide that the termination is invalid. In this case, the employee is also entitled to severance and notice pay.

Prohibition of Discrimination

Turkish Law does not discriminate between employees. On the contrary, employers are obliged to treat all employees equally, pursuant to Article 5 of the Labor Law. Accordingly, all employers are under the obligation to treat all employee groups equally. In this context, the employer cannot discriminate based on language, race, colour, religion and sect, gender, disability, political opinion and similar reasons.

Unless there is a substantial reason, an employer may not discriminate between employees with a full-time employment contract and employees with a part-time employment contract, or between employees with a fixed-term employment contract and employees with an indefinite-term employment contract. Unless there are biological reasons or reasons related to the nature of the work, the employer may not directly or indirectly treat an employee differently due to sex or pregnancy. Lower wages for work of the same or equal value cannot be agreed due to gender. The application of special protective provisions due to the gender of the employee does not justify the application of a lower wage.

Non-discrimination compensation and burden of proof

In the case of a violation of the equal treatment principle, the employer is obliged to pay discrimination compensation in the amount of up to four months’ salary in accordance with Article 5 paragraph 6 of the Labor Law. Pursuant to the last paragraph of Article 5 of the Labor Law, the burden of proof of discrimination rests with the employee. However, where the employee strongly suggests the possibility of a violation, the employer is obliged to prove that such a violation did not occur.

E-Trial System

Within the scope of the Ministry of Justice’s Judicial Reform Strategy, the e-hearing system has started to be implemented in civil proceedings with the “Regulation on the Execution of Hearings via Audio and Video Transmission in Civil Proceedings”.

Within the scope of Article 7 of the Regulation, upon the request of one of the parties in civil proceedings, the court may decide that the requesting party or their attorney may attend the hearing via an e-hearing. The court must accept or reject the e-hearing request at least one business day before the hearing date, and this decision is final. Pursuant to Article 10 of the relevant Regulation, the court may decide ex officio to hear the witnesses and experts through an e-hearing.

In the event that the attorney of the party participates in the e-hearing, identification is carried out by means of a secure electronic signature or mobile signature. The identification of other relevant persons, such as parties, witnesses, experts, etc, will be made by the clerk of the court or clerk of the registry office allocated for e-hearings in the courthouse where they are located.

In the event that a declaration of waiver, acceptance or settlement is made by the party or their attorney attending the e-hearing, the court will set a new hearing date and the termination of the case will become valid if the hearing report is signed by the declarant.

Private Employment Agencies

Pursuant to Article 90 of the Labor Law, the intermediary duty of placing job seekers in suitable jobs or finding suitable workers for various jobs is carried out by the Turkish Employment Agency and private employment agencies authorised in this regard.

Class Action

The Turkish labour law system does not accept the concept of collective action. Each employee must apply to the court independently to protect their own rights or interests.

Representative

The employee may be represented by a lawyer authorised during the proceedings, or by union officials or worker representatives who have the authority to represent workers.

Arbitration

One of the biggest obstacles to justice in Türkiye is the long duration of trials. The main reason why arbitration is considered as an alternative is that it is faster than litigation in the state courts. According to the first paragraph of Article 20 of the Labor Law, if the parties agree, the dispute may be referred to a special arbitrator instead of the labour court.

According to the established case law of the appellate court, an arbitration agreement concluded before or during the establishment of the business relationship is invalid. The conclusion of an arbitration agreement in accordance with the principle of interpretation in favour of the employee does not prevent the employee’s right to file a lawsuit in the state courts.

Attorney’s Fees and Other Costs

Pursuant to Article 164 of the Legal Profession Act No 1136, Article 323 and 329 of the Code of Civil Procedure No 6100, trial expenses and attorney’s fees are paid by the losing party.

Where the lawsuit is partially or completely dismissed

In this case, a decision will be made against the plaintiff party to pay an attorney’s fee to the attorney of the opposing party. The defendant’s attorney will receive a counter-attorney’s fee from the plaintiff for filing an unfair lawsuit.

If the lawsuit is partially or fully accepted

In this case, the defendant will be ordered to pay an attorney’s fee to the plaintiff’s attorney. In other words, the prevailing party does not pay an attorney’s fee and the attorney of the prevailing party receives their fee from the defendant. With respect to the part of the case that the plaintiff lost, a decision is made to pay attorney’s fees to the opposing party’s attorney.

If the parties do not have a lawyer

No attorney’s fee is awarded.