A Roadmap for Companies Operating in Turkey to Combat Violence and Harassment at Work

Violence and harassment at work is a widespread problem from which no society, economic-social class or business sector is immune. The #MeToo movement, which started with women in the entertainment and media industries coming forward about their experiences of sexual harassment by famous and powerful men, was a great reminder of the grand scale of this issue.[1] Though, it is certainly not an issue experienced in Hollywood alone – in a survey conducted in 2017 in the USA, nearly 50% of working women said that they had experienced harassment at work and 41% of men had witnessed inappropriate conduct against women in the workplace.[2]

While sexual harassment, especially experienced by women, may be among its most common forms, a wide array of behaviours at work can constitute violence and harassment. These behaviours can be physical, psychological, or sexual and may happen once or be part of a systematic pattern. Perpetrators of such inappropriate conduct can be colleagues, superiors, subordinates, or clients of the victim. Moreover, the severity of these acts can range from minor cases of disrespect to more serious acts, including criminal offences.[3]

Although a large proportion of these acts that pass a certain severity threshold are classified as criminal offences in many jurisdictions, the more subtle forms of harassment in the workplace, such as mobbing or bullying, may go unnoticed, or worse, be regarded as negligible by a company’s management. However, not being punishable by law does not remove the physical or psychological impact these acts can have on victims. In cases of non-criminal harassment, the victim is often left without a legal remedy.

Against this backdrop, creating a safe working space for employees has become a priority for responsible businesses, but  one that may prove difficult. The main underlying reason for this difficulty is the paradigm that defines violence and harassment at work as a human resources issue, rather than a human rights one.

Given the complexity, the widespread occurrence, and the problems with business’s approach to the issue, it was very timely when the International Labour Organization opened the Eliminating Violence and Harassment in the World of Work Convention (the “ILO Convention” or the “Convention”) for state ratification in 2019. This article will provide an overview of (i) the key provisions in the ILO Convention, (ii) the law in Turkey with regard to violence and harassment at work, and finally (iii) a roadmap for responsible companies.

1. Key Aspects of the ILO Convention Against Violence and Harassment at Work

The ILO Convention was negotiated and drafted by representatives of states, workers and employers from 187 countries, which is a sign that the Convention will enjoy significant support when it enters into force on June 25th 2021.[4] The most important feature of this Convention is that for the first time, the right to a world of work free from violence and harassment has been articulated in an international treaty.[5] Besides the recognition of the right, the Convention creates a clear and common framework to prevent and address violence and harassment at work.

In essence, the ILO Convention encapsulates the minimum obligations of states and calls upon governments and private enterprises to take necessary measures to eradicate violence and harassment at work. In this regard, the Convention requires states to enact laws and adopt national policies that are inclusive, integrated, and gender-responsive.[6]

The Convention makes a broad definition and stipulates that “violence and harassment in the world of work refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment.”[7]

Building on this broad definition, the scope of the Convention is also very inclusive – it applies to public and private sectors, formal and informal economies, urban and rural areas, and even to job applicants and volunteers.[8] Therefore, it is clear that the ILO Convention’s scope has been formulated in a way that transcends protection under labor law or contract law in many national systems and protects workers who may not have enjoyed any protection otherwise.

Moreover, the Convention expands the definition of “workplace” to include work-related trips, events or social activities, work-related communications, employer-provided accommodation, and the work commute. This means that any violence and harassment that takes places in these situations falls under the protection of the Convention, addressing the gaps that had previously left the employees vulnerable.

2. Violence and Harassment at Work: Turkish Law & Practice

Although Turkey has not ratified the ILO Convention yet, during the negotiation process, Turkish state representatives supported the Convention. This means that the Convention may be on Turkey’s agenda for ratification in the near future. This chapter will address the current protection under Turkish law and practice with regard to violence and harassment in the world of work.

The Turkish Constitution does not have an explicit provision on violence and harassment at work, but it guarantees the right to physical and mental integrity (Art. 17) as well as the right to respect for private life (Art. 20). It also provides prohibition of discrimination based on race, sex, religion and other grounds (Art. 10).

Similarly, the Turkish Labour Code (Law no. 4857) provides for the equal treatment principle and prohibits discrimination at work (Art. 5). It also protects employees from sexual harassment in the workplace by providing rights to rightful termination and to claim compensation (Art. 24-26).

An additional layer of protection is provided in the Turkish Code of Obligations (Law no. 6098). It obliges employers to respect the personality rights of employees and to protect them against phycological harassment, sexual harassment, and any other type of harassment in the workplace (Art. 417).

However, in order for the victim to claim compensation based on Art. 417 of the Turkish Code of Obligations or the above-mentioned articles of the Turkish Labour Code, a contractual relationship, or an employment relationship, respectively, must be present. This means that these laws do not provide adequate protection for workers that fall outside of the boundaries of legally recognized work, such as in the informal economy. In this respect, the ratification of the ILO Convention and the subsequent enactment of laws in line with it, as required by Art. 7 of the Convention, will widen the protection for all workers who are at risk of being subject to violence and harassment in the workplace.

Not least, of course, if the act of violence or harassment is severe, it will lead to the involvement of the criminal justice system based on the provisions in the Turkish Penal Code (Law no. 5237). Crimes that may be relevant are, inter alia, defamation (Art. 125), duress (Art. 106), extortion (Art. 107), torment (Art. 96), sexual assault (Art. 102), or sexual harassment (Art. 105).

Besides the limited but progressing normative protection, Turkish apex courts are also rendering important judgments on harassment in the workplace that have far-reaching effects in the domestic legal system and aim to close the regulatory gaps.

In a landmark judgment of 2019, for instance, the Court of Cassation held that sexual harassment at work is a violation of personality rights and the right to freely work. It also acknowledged that women are disproportionately affected by sexual harassment at work and held that sexual harassment is the primary obstacle faced by women at work.[9] This gender-responsive approach of the court has been widely praised by the public and advocacy groups in Turkey.

Not least, Turkish Constitutional Court has expanded the scope of protection against phycological harassment, even if the law does not have explicit norms in this respect. In a 2020 judgment, Turkish Constitutional Court found a violation in an individual application since the High Administrative Military Court did not effectively review an applicant’s allegation that he was subjected to mobbing as a military doctor in the army.[10] The Court held that the rejection of the applicant’s mobbing allegation on the grounds that the applicable law does not define “mobbing” per se was a violation of his right to an effective remedy.[11]

The laws and apex court judgments taken together demonstrate that there is a trend in Turkish law and practice towards expanding the scope and coverage of protection against violence and harassment at work. Therefore, even though Turkey has not yet ratified the ILO Convention, businesses operating in Turkey must be aware of the legal risks in this respect and take appropriate action to prevent and mitigate them.

What can companies do to address harassment in the workplace?

Based on the above chapter, it is clear that a business would be held liable for failing to prevent violence and harassment in the workplace and could be ordered to pay compensation to the victim(s), be it legally grounded in employment law or the law of obligations.

Besides the risk of litigation and compensation claims, however, businesses face more challenging risks if the issue of violence and harassment is not properly addressed. These risks include, inter alia, reputational harm, an inability to attract new talent due to bad reputation, higher rates of absenteeism, and a decrease in the quality of services.

In order to avoid these risks, companies should have robust strategies to combat violence and harassment at work.[12]Adopting a workplace policy that clearly states that violence and harassment is not tolerated within the company is a crucial first step. This statement, of course, should be drafted in consultation with experts.

Second, the company must have clear procedures in place to be followed when any incident occurs. Good practices in this respect include (i) appointing a trusted person who is available to give advice and assistance to victims, and (ii) establishing whistle-blower hotlines through which anonymous complaints can be filed.

A third component of a robust anti-harassment strategy is raising awareness and providing appropriate training. The content of a training program should, at  a minimum, include (i) information on the company’s commitment to maintaining a violence and harassment-free workplace, (ii) types of inappropriate behaviour, (iii) internal remedies, and (iv) the rights and responsibilities of all employees.

Conclusion

The new ILO Convention sets an internationally recognised benchmark in combatting violence and harassment in the workplace and will be the north star of all responsible businesses. While Turkey has not ratified the Convention yet, Turkish law and practice is also expanding its scope to provide more protection for employees.

Against this backdrop, businesses should have policies and processes in place to prevent any incident. In this regard, the goal of a business should be to prevent the risk of harassment and violence in the workplace before any incidents arise. Therefore, businesses should go beyond strict requirements in Turkey’s national laws and strive to provide a violence and harassment-free workplace for their employees in accordance with the ILO Convention. This approach will inevitably lead to a better brand image, an increase in productivity, and sustainable human resources management. Ergo having an effective and proactive employment rights compliance program is an asset that will mitigate potential legal and compliance risks and foster ethical culture, employee engagement and trust in the workplace.

 

[1] Sini, Rozina. “How ‘MeToo’ Is Exposing the Scale of Sexual Abuse.” BBC News, 16 Oct. 2017, www.bbc.com/news/blogs-trending-41633857.

[2] Dann, Carrie. “NBC/WSJ Poll: Nearly Half of Working Women Say They’ve Experienced Harassment.” NBC News, 30 Oct. 2017, www.nbcnews.com/politics/first-read/nbc-wsj-poll-nearly-half-working-women-say-they-ve-n815376.

[3] Commission of the European Communities, “Communication from the Commission to the Council and the European Parliament: Transmitting the European Framework Agreement on Harassment and Violence at Work”, Com(2007) 686 Final, 2007, p. 4.

[4] Human Rights Watch, “Safety and Dignity at Work: A Guide to the 2019 ILO Violence and Harassment Convention”, 2020, p. 27.

[5] The ILO Convention, Article 4 (1).

[6] The ILO Convention, Article 4 (2).

[7] The ILO Convention, Article 1(a).

[8] The ILO Convention, Article 2.

[9] Turkish Court of Cassation, 9th Civil Chamber, judgment numbered E. 2019/6572, K. 2019/16671 and dated 25 September 2019.

[10] Turkish Constitutional Court, Levent Tütüncü (2), Application No. 2015/710, 8 September 2020.

[11] Ibid, para. 50-51.

[12] The ILO Convention, Article 9.