Respecting The Freedom Of Expression And Right To Private Life In The Employment Context: The Analysis Of The Constitutional Court Case In Ayhan Deniz And Others - Employee Rights/ Labour Relations - Turkey

[Gunnar Larson]

https://www.mondaq.com/turkey/employee-rights-labour-relations/1430230/respecting-the-freedom-of-expression-and-right-to-private-life-in-the-employment-context-the-analysis-of-the-constitutional-court-case-in-ayhan-deniz-and-others


Turkey: Respecting The Freedom Of Expression And Right To Private Life In
The Employment Context: The Analysis Of The Constitutional Court Case In
Ayhan Deniz And Others

23 February 2024

by Eyup Kun and Citil Attorney Partnership
Citil Attorney Partnership

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with the authors

View Eyup Kun Biography on their website

The individual complaint case filed by Ayhan Deniz and others has been
published in the Official Gazette on November 22, 2023. This case concerns
the termination of employment contracts for multiple employees as a result
of their social media posts. This case involves an intricate interaction
between labour law, the freedom to express oneself, and the right to
privacy. The Court's analysis provides a sophisticated perspective on the
intersection between personal expressions on social media and employment
obligations and rights.

1. Overview of the Case
The individuals in question were employed by İzmit Atık ve Artıkları Arıtma
Yakma ve Değerlendirme Anonim Şirketi (İZAYDAŞ) in Turkey. The Kocaeli
Metropolitan Municipality Inspection Board conducted an investigation and
found that their social media posts violated the moral and goodwill rules
stated in Article 25 of the Turkish Labour Law (4857). As a result, their
contracts were terminated. The employees initiated legal proceedings
seeking reinstatement, but their claims were initially dismissed by the
Kocaeli 5th Labour Court. The Court determined that the termination was
justified due to the posts violating trust and loyalty, which qualifies as
a legitimate cause under the Labour Law. After the case advanced through
different tiers of the legal system, encompassing the Istanbul Regional
Court of Justice and the Court of Cassation, the employees initiated to
file a individual complaint alleging, among others, violation of freedom of
expression and right to private law.

2. Analysis by the Constitutional Court
The Constitutional Court examined whether the dismissal from employment as
a result of social media posts violated the applicants' right to privacy
and freedom of speech. The Court examined the content of the posts, which
consisted of critical remarks directed towards political figures and
policies. The Court stated that these expressions constituted a component
of the applicants' personal life and fell within the scope of their
entitlement to freedom of speech.

The Court assessed the substance of the posts and their influence on the
work environment. It was observed that the lower courts did not
sufficiently evaluate whether the posts had a negative impact on the
workplace atmosphere or the employer's functioning. The Court emphasised
the need to strike a balance between the employer's operational interests
and the rights of the employees. It is revealed that the lower courts did
not effectively establish this equilibrium, as they did not sufficiently
justify how the social media posts justified termination.

The Court acknowledged that employers have the authority to enforce
limitations on employees' personal lives for valid operational purposes.
Nevertheless, these limitations should not excessively encroach upon
fundamental rights, such as the right to express oneself. The Court
determined that the termination of the employment contracts, which was
result of the content shared on social media, constituted a breach of the
applicants' entitlement to freedom of speech. The Court found that the
lower courts had not adequately substantiated their rulings.

Overall, the Constitutional Court's ruling demonstrates a thorough
examination of the overlap between labour legislation, the utilisation of
social media, and basic human rights. It emphasises the significance of
examining the context and content of social media posts, the requirement
for a fair evaluation of both employer and employee interests, and the
safeguarding of freedom of speech in the workplace. This case highlights
the importance for employers to thoroughly assess the consequences of
social media activity when making employment decisions. It is crucial that
any measures taken by employers do not excessively violate employees'
rights to privacy and freedom of speech.

3. Takeaways For Employers
Considering the ruling of the Constitutional Court and its implications,
here are some recommendations for employers to take into account when
formulating policies regarding the termination of employment contracts,
with a focus on safeguarding freedom of expression:

Establish a policy regarding the social media: Employers should establish
clear guidelines pertaining to the use of social media. The policies should
clearly define the behaviours that are considered acceptable and
unacceptable on social media platforms, and also make it clear how engaging
in social media activity can affect one's employment status.
Strike a Balance Between Freedom of Expression, Right to Privacy and
Workplace Harmony: Employers must find a ground between upholding
employees' right to freely express themselves and ensuring a workplace
environment that is respectful and harmonious. The policy must not
prejudice personal opinions or expressions that have no direct bearing on
the workplace atmosphere or the company's functioning.

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.
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