A Noval Case-law of the Turkish Constitutional Court regarding Mobbing

October 14, 2022by Bünyamin Esen0

According to the Turkish Labour Law, mobbing, which is also expressed as psychological harassment or psychological supression of the employee by employers, is being prohibited.

In the Article 417 of the Turkish Code of Obligations, which regulates the employer’s obligations to protect the worker and imposes the employer’s obligation to supervise the worker, “mobbing prohibition” is regulated under the heading “Protection of the Personality of the Worker”.

Accordingly, the employer is obliged to protect and respect the personality of the employee in the service relationship and employment relationship, to ensure an order in accordance with the principles of honesty in the workplace, and to take the necessary measures especially to prevent the workers from being subjected to psychological and sexual harassment and to prevent further harm to those who have been subjected to such harassment. In other words, psychological deterioration of the worker is prohibited, and it is defined as the employer’s legal responsibility to protect the worker’s psyhcological and mental health.

However, the most important problem in the lawsuits filed for the protection of this right is the problem of proof. Because psychological harassment leaves no trace and cannot be proven with written documental evidence, the Turkish labor courts are spending extreme time doing research to determine whether there is mobbing or not.

As such, the workers who sue with the allegation of mobbing are often subjected to lose their case even if they are right. As such, the number of cases with effective results from mobbing lawsuits remains very low.

The Turkish Constitutional Court has developed a noval case-law on this issue recently. With the decision of the Constitutional Court published in the Turkish Official Gazette dated October 11, 2022, an important procedure has been developed for the proof of mobbing.

The summary of the decision of the relevant Constitutional Court is as follows: “We have stated that the faculty member employee has been forced to resign, in total nine disciplinary punishments were given to the employee in two years, the penalties were canceled by the Higher Education Council or the court upon objection, he was being treated for psychological harrassment in this process, and that the allegation of mobbing was serious and sufficient evidence has been presented. Denial of the case without adequate investigation is a violation of rights.”

With the last decision, having received psychological treatment is started to be considered as an important presumption and proof tool in mobbing allegations. In other words, having received psychological treatment (if there is supporting evidence such as an unjust punishment documents) has become evidence of the existence of mobbing.

Since the Constitutional Court’s case law binds all the Turkish labour courts, now all the labour courts will investigate whether the worker is subjected to psychological mobbing in business life in cases filed with the claim of mobbing, and will also investigate whether he/she has received psychological treatment in public or private health service providers regarding this issue. In this direction, if the worker claims that “I received psychological treatment due to mobbing”, the labor court will have to examine the issue in more detail.

Bünyamin Esen

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