Turkish Constitutional Court Upholds the Requirement of Prior Notification as a Prerequisite to the Review of Employee Emails
The Turkish Constitutional Court has found a violation of the right to respect for private life in a recent judgment, published on 9 December 2020, concerning the dismissal of an employee on moral grounds due to his affair with a married colleague.
In its judgment, the Constitutional Court has laid down the constitutional conditions for the termination of an employment contract on moral grounds due to a relationship between employees. This judgment will lead to a change in the established case-law of the Turkish Court of Cassation.
The applicant's employer received an anonymous call stating that the applicant was a member of a terrorist organization and that he was going to carry out a bomb attack.
Upon receiving this call, the company’s employees were questioned and an employee named V.B. confessed to a relationship with the applicant and stated that the person who made the anonymous call could be her husband, who had found out about the affair. The applicant was not asked whether V.B.'s statements about him were factual.
The employer then terminated the applicant’s employment contract with just cause on moral grounds as per Article 25/II of the Labor Code having established that the applicant was having an affair with a colleague and that this affair had caused the anonymous call, which resulted in a loss of production, fear, and unrest in the workplace.
Thereupon, the applicant filed a re-employment lawsuit, which was initially accepted by the first instance court but was rejected by the Court of Cassation’s 22nd Civil Chamber. Upon the rejection, the dismissed employee filed his application to the Constitutional Court.
In its assessment, the Constitutional Court reiterated that a person's private life is protected while at work. Still, this protection is not unlimited, and an employer may impose some limits that can be justified as legitimate for the purposes of the effective execution of the business, and occupational health and safety. With that said, the employer’s authority in this regard is also not unlimited, and a balance must be struck between the employee’s right to respect for private life and the employer's legitimate interests.
In this context, the Constitutional Court concluded that if a relationship between two employees does not affect the effective execution of the business’s work, or occupational health and safety, it cannot be a reason for just termination. The burden of proof is on the employer to prove the adverse impact of such a relationship on the workplace.
In the case at hand, the Constitutional Court found that the employer could not establish the adverse impact of the relationship between the employees since the relationship and the anonymous call were not related. The court also found that the employer could not submit documents supporting its claims of damage suffered, and that even if damage had been suffered as a result of the anonymous call, it was not the fault of the applicant.
While also taking into account that the applicant had not been granted the chance to defend himself until the trial stage, the Constitutional Court decided that the applicant's right to respect for private life had been violated.
In its established case-law, the Court of Cassation currently holds that having an affair with a married co-worker is "immoral" and that it goes against an employee's integrity and commitment, which, in itself, adversely affects the workplace.
However, according to this Constitutional Court judgment, the Court of Cassation will have to change its case-law direction. In this regard, the Court of Cassation and the lower courts will need to consider the following circumstances in similar cases:
- Whether the alleged relationship between the employees has been made public,
- If it has been made public, whether it was made public by the two employees or by third parties,
- What adverse effects the relationship causes in the workplace, and
- Whether these adverse effects can be proven.
In future judgments on the topic, having a relationship with a married employee will not be accepted as grounds for just termination in itself. Otherwise, the termination will constitute a violation of the right to respect for private life.
Another critical point in the Constitutional Court’s judgment is the due regard given to the employer’s failure to take the applicant’s defence statements before dismissing him. According to the Labor Code, in cases where there is a “justified reason” for termination within the scope of Article 25, the employer is not obliged to take defence statements from an employee but only if the case involves a “valid reason” for termination.
In the Court of Cassation’s current case-law, however, an employer is not required to obtain defence statements from an employee who has been dismissed with a “just” reason even if the Court of Cassation later finds that the reason for dismissal is a “valid” one. In this respect, we may conclude that the Court of Cassation's relevant case-law will change its direction as per the Constitutional Court's emphasis on employers obtaining defence statements before the trial stage.
While the Constitutional Court’s H.Ç. judgment is not a landmark one from a constitutional law point of view, it is undoubtedly a significant judgment for Turkey's labor law practice, which will lead to substantial changes in case-law. Because the Constitutional Court has set a new standard not only for the cases arising from affairs with a married colleague but all behaviour that might be regarded as “immoral”.
The Constitutional Court went beyond the concept of immorality in abstracto which could be relative and subjective and, thus, is open to a wide range of misinterpretation. Instead, the Court accepted the standard of requiring a causal link between the alleged immoral behaviour and the effective performance of work as a condition for just termination.
As stipulated in Article 153 (6) of the Turkish Constitution, the Constitutional Court's judgments bind all judicial bodies. In this context, we observe that the Court of Cassation, regional appeals courts, and first instance courts will change their case-law following the Constitutional Court's H.Ç. judgment.
As part of this anticipated change of established case-law, it is advised that employers take defence statements from all employees who are dismissed, whether on just or valid grounds, as a preventive legal practice.
 Turkish Constitutional Court, H.Ç., Application No: 2017/14907, 30 September 2020.
 Please see: the Turkish Court of Cassation 9th Civil Chamber 2017/11196 E. 2019/14430 K. sayılı; 2015/30145 E. 2019/3397 K. sayılı ve 2018/10504 E. 2019/8673 K. sayılı ilamları.