Considering the huge impacts of the coronavirus on the economy and business globally, we would like to give you a brief information about the legal consequences of this pandemic in Turkey from a Turkish employment law perspective. Please see below the questionnaire prepared to guide the employers who have business in Turkey, vis-à-vis their employees.
1. Which workplaces are obliged to be temporarily closed?
According to the Circular published by the Ministry of Interior of Turkey on 16.03.2020, all theatres, cinemas, show centres, concert halls, engagement/wedding halls, restaurant/cafés with music or live performance, clubs, pubs, taverns, coffeehouses, cafeterias, countryside gardens, hookah cafes, internet cafes, playrooms, clubhouses, amusement parks, swimming pools, SPAs and gyms are required to be temporarily closed.
Workplaces which do not fall under the scope of the Circular will continue to operate as usual. In this respect, please kindly note that according to the general principles under Turkish Labour Code (the "Labour Code") and the Turkish Code of Obligations, employers are obliged to implement health surveillance in the workplace and protect the personal rights of the employees. Therefore, in practice, some of the employers, although not mandatory under the above-mentioned Circular, take certain measures to prevent the spread of the coronavirus at the workplace, i.e. closing, re-structuring or downsizing their businesses.
2. What are the options of the workplaces which are closed voluntarily, or mandatorily under the Circular?
Firstly, it is important to note that according to Article 417 of the Turkish Code of Obligations, employers are obliged to protect their employees and take all necessary precautions to provide occupational health and safety at the workplace. Therefore, employers who wish to open their businesses (that do not fall under the Circular) must be diligent in calling their employees to work in order to prevent the spread of the virus. In this respect, if such employers do decide to temporarily close their workplaces during the pandemic, as a rule, they will still be under the requirement to pay salary to their employees, since they do not fall under the Circular (except for cases specific to the workplace or the employee in question).
Whether the workplace is closed mandatorily under the Circular or voluntarily as explained above, the employers may consider implementing the following options (not necessarily in the below order):
- Employees working from home (with full or partial salary) if possible - In such a case, the employees may work from their homes in return of full salary or partial salary. Please note that the prior written approval of the employee will be required for the partial salary payment option.
- Employees collectively taking annual leave - In cases where it is not possible for the employees to work from home or it is not preferred by the employers to pay salary while the workplace is temporarily closed, then the employers may require the employees to collectively use their annual paid leave rights. Accordingly, the annual leave forms should be filled in by the employees before using the paid annual leave right.
- Employees collectively taking unpaid leave – In cases where none of the above measures can be applied, the employees may be required to take unpaid leave which is explained below in detail.
- Other measures and termination – We will delve into other available options such as compensatory work and the reciprocal termination rights below.
It is important to note that Article 40 of the Labour Code requires that in force majeure cases, the employers must pay half the salary of the employee for a period of 1 week even though the employee does not work in return. Therefore, the said Article 40 must be applied by the employers (only for a week) in any case, even the employers implement the options we explain in this Article as far as to terminate the employees, hence the employers will be required to pay half the salaries and social security premiums of the employees for 1 week as explained above.
After the 1-week period, employment contracts of employees working at the workplaces that fall under the Circular, will be suspended and the employers shall not be required to pay salary. That said, we still recommend such employers to implement the above-mentioned measures if possible before proceeding with a termination.
As mentioned above, the requirements to come to work in respect of the employee and to pay salary in respect of the employer still continue for the workplaces that do not fall under the Circular (unless there is a specific quarantine case); therefore, it is crucial for such employers to consider the options we discuss in this Article.
3. How is the unpaid leave procedure implemented in Turkey?
Please be informed that the employers may always require their employees to take unpaid leave for a certain period of time, by taking their prior written consents. In this respect, the employers who require their employees to take unpaid leave must inform them in writing beforehand and clearly state the reason for the unpaid leave as the coronavirus pandemic. A reasonably limited period must be determined and indicated in the consent letter, as to how long the unpaid leave procedure will be in effect, and such must also be stated in the consent letters. Merely writing "as long as the epidemic continues" is not advised.
The employment contract of an employee who accepts to use the unpaid leave, within 6 business days, in writing, will be suspended accordingly. During the suspension, such employment contracts will continue to be legally effective, but the employees will no longer be obliged to perform their work and the employers will not be obliged to pay salary. Moreover, the employers are not required to pay social security premiums of the employees during the unpaid leave term.
On the other hand, if the employee does not accept the unpaid leave requirement within 6 business days, then the employer may terminate the employment contract by explaining in writing that this requirement is based on a valid ground (considering that the other options are or cannot be used). Please kindly note that in such a termination, the severance pay must be paid to the employee whose employment contract is terminated if she/he has the eligibility as per Article 14 of the former Turkish Labour Code. We would like to emphasize that the pandemic can also be a reason for immediate termination as explained below.
Please be informed that the parties may amend the working conditions of the employee (such as the salary or change of duties as part of re-organization) by mutual agreement at any time.
4. If none of the above (paid leave, unpaid leave, working from home) measures can be taken by the employer, is there any other option other than termination of the employment contract?
In any case where the employers voluntarily or compulsorily close their workplaces during the pandemic and none of the abovementioned measures (paid leave, unpaid leave, home-office) can be or are taken, other measures such as compensatory work or short-term working may be applied if it is not wished to terminate the employee.
5. How is the compensatory work implemented by employers?
In the cases where the working hours of the employees are considerably lower than the regular working hours; or the operations are stopped entirely due to the force majeure or the employee is granted unpaid leave upon his/her request, the employer may require the employee to do compensatory work within two months (it is expected to be extended to 4 months by the Turkish Government) in order to make up for the missing time. Such compensatory work will not be considered overtime and therefore the employee will not be entitled to overtime payment. Please note that the employers must inform the employees about the details of the compensatory work beforehand. The daily working hour of an employee can be maximum 11 hours and the compensatory work must not exceed 3 hours each day.
6. What is short-term working and short-term employment allowance?
In case that the working hours in a workplace are reduced by at least 1/3 or the operations are completely or partially suspended for at least 4 weeks (it does not have to be successive), the employer may decide to implement short-term working at the workplace due to the compelling reasons such as general economic, sectoral or regional crisis and epidemic disease by applying to the Turkish Employment Agency.
Please kindly note that that the period of short-term employment cannot be more than 3 months (it may be extended to 6 months by the President). During this period, the employees who are eligible to receive unemployment allowance from the Turkish Government by meeting the "social security premium day requirement" will also be eligible to receive short-term employment payment from the Turkish Government.
7. Can the employment contracts be terminated due to the coronavirus pandemic?
Please note that all employers must consider terminating the employment contracts as a last resort by also taking into account the proportionality and equal treatment policies under Turkish employment law.
According to Article 24 of the Labour Code, the employee may immediately terminate the employment contract based on just cause due to the "occurrence of force majeure which suspends the operations of the workplace more than 1 week." On the other hand, according to Article 25 of the Labour Code, the employers may also immediately terminate the employment contract "in case of a force majeure preventing the employee from working in the workplace for more than 1 week."
Regardless of whether the termination is made by the employer or the employee; in case of such above-mentioned immediate termination based on just cause, the employee will be entitled to a severance payment if he/she worked at least 1 year for the employer (save for cases specific to the employee). However, none of the parties, as a rule, will be entitled to notice pay.
Having said that, please be remined that each case should be evaluated specifically before taking any action as to termination, especially in respect of the workplaces that do not fall under the mandatory shut down requirement, but close voluntarily.
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.
