Abstract
The article presents an account of the use of human rights litigation in the employment context through the lens of the Turkish Constitutional Court's (TCC) case law, focusing on the two core human rights of freedom of expression and the right to respect for private and family life under the individual application remedy. The main argument of the article is that the elevation of employees’ free speech and privacy concerns in employment relations, from an understanding and examination based on the employment contract to a constitutional level of review due to the availability of the individual application procedure, allows employees to confront employer-imposed restrictions that may infringe their constitutionally protected human rights. Direct access to the TCC potentially provides greater safeguards for employees' enjoyment of core human rights at work and beyond. At the same time, it is crucial not to magnify the role of individual applications in providing constitutional human rights protection to employees mainly because of procedural requirements.
Keywords
Introduction
Human rights historically seek to protect the individual by constraining the authority of the state rather than the power of private actors, reflecting the idea that only the state can violate a person's fundamental human rights. These rights are assumed to apply vertically between the state and individuals, largely omitting horizontal relationships between private actors. 1 Scholars, however, have come to recognise that human rights can be applied to address problems in the private sphere, including glaring disparities, severe power imbalances, and violations of human dignity. 2 The employment relationship is one of the private spheres that features significant power discrepancies between the parties as employers wield authority reminiscent of the state and may sanction employees for enjoying constitutionally protected rights. 3 From this vantage point, there is little difference between invoking fundamental human rights against the state and against the employer. 4
Protecting the human rights of labour, seen as individuals at the workplace and beyond, ‘remains in a sort of no-man's land between civil and political rights and social and economic rights’ as labour rights are not generally deemed to be part of traditional human rights discourse. 5 This view primarily emanates from an understanding of employment relations as a voluntary contract with reciprocal obligations and an economic transaction between private parties governed by labour law. 6 Employers’ violations of employees’ rights may be just as serious as those committed by public authorities, necessitating state intervention as part of its positive obligations to safeguard the rights of individuals. 7 Employees frequently run the risk of having their employment contracts terminated when they exercise their fundamental rights both during and outside working hours if their employers disapprove of their legal private conduct, which may lead to the arbitrary use of power and discretion by the latter. 8
As a result, there has been an increasing recognition of the necessity to defend the basic human rights of labour through the application of international and regional human rights law. For example, the European Court of Human Rights (ECtHR) asserts that human rights have horizontal effect in the employment relationship, indicating that the state has a range of positive obligations to enable people to exercise and enjoy their human rights and prevent them being encroached upon by third parties. 9 It has, thus, widened the scope of political and civil rights to incorporate employees’ rights in work-related contexts, and has handed down decisions securing employees’ freedom of association, expression, and religion, the prohibition of forced labour, and discrimination, as well as their privacy in relation to professional interests. 10 In these judgments, the ECtHR has, in the main, used proportionality analysis to assess whether a fair balance is struck between the competing interests of state or corporations and the individual. Horizontal interference may only be justified provided that it is for legitimate reasons and is done in a manner proportionate to the aim pursued. 11 On the other hand, the ECtHR sometimes distinguishes between levels of protection against intrusions by private persons and those against government interference. For example, it takes the view that while some manifestations of the right to freedom of expression may merit legal protection in specific instances, they may not receive the same protection in the context of labour relations, particularly when the speech is offensive and of low value. 12
Domestic constitutional/supreme courts also increasingly consider labour rights as components of human rights. 13 This is particularly evident in disputes involving employees who have been dismissed or subject to various disciplinary sanctions as a result of their use of social media. 14 Some researchers and labour activists are, nevertheless, wary of the use of human rights in the employment context because of their emphasis on individual rights over collective rights. 15 They argue that there is always a risk of courts handing down unfavourable decisions that may erode labour rights. For the skeptic, the most promising avenue for securing labour's rights is through grassroots labour organisations that assert the right to collective bargaining and association. 16
It is undeniable that rights-based litigation is unlikely to eradicate deeply ingrained power imbalances and structural injustices in the employment relationship, but it can be suggested that human rights law may, to some extent, contribute to rectifying power imbalances between the parties in the context of diminishing collective labour power. 17 The application of human rights to the workplace is not a panacea for effectively preserving employee rights, but it does provide an important means of reviewing employers’ conduct and assessing whether the state fulfils its positive obligations. 18 This may also foster the development of ‘rights consciousness’ among employees, allowing them to safeguard their interests against all odds as they have access to consequential legal tools against infringements by both public and private power. 19 Considered in this light, labour's use of human rights law in the workplace also may bolster the effective protection of collective labour rights. 20 Here, the emphasis is on the complementary nature of the individual and collective dimensions of labour rights rather than downplaying the significance of the latter.
With this in mind, the piece feeds into the evolving discussion on application of the human rights at work by exploring the Turkish Constitutional Court's (TCC) approach to the subject. It provides fertile ground for shedding light on how a constitutional court can rule on labour rights as human rights because it has developed case law on the subject which can be used to provide insight into the extent to which employees’ human rights are safeguarded at work. The article highlights how the TCC has interpreted civil and political rights secured in the Turkish constitution and applied them to the employment relationship through a critical reading of a string of cases. To that purpose, we investigate individual applications relating to freedom of expression and the right to respect for private and family life in the context of employment. We confine our examination to these two rights because they are part of the core of civil and political rights. Furthermore, they account for a large portion of the TCC's violation rulings, ranking second and sixth, respectively, if breaches related to excessive length of processes are omitted. 21
We suggest that remedies that provide direct access to constitutional courts open up new avenues for the implementation of human rights in the employment relationship by smoothing the path of interpretation of labour rights as human rights. As such a procedure, the individual application to the TCC provides employees with a viable legal tool for the constitutional protection of their rights at work. Since the article's goal is to delve into individual employees’ exercise of basic human rights at work, collective labour rights are not included in the study. Likewise, cases involving procedural fairness or the right to a fair trial are also excluded.
The structure of the article is as follows. The first section presents a brief discussion of the TCC, focusing on the individual application remedy. Next, the TCC's case law under this procedure is examined with two subsections exploring complaints about alleged violations of freedom of expression and the right to respect for private and family life. The final part of the article considers the findings and locates them within the context of the larger debate concerning the function of constitutional courts in safeguarding basic human rights in employment relations.
The individual application to the Turkish Constitutional Court
Throughout most of its history, the TCC served as the judicial body primarily charged with reviewing the constitutionality of laws. It did not function as a human rights court because it usually put state interests ahead of individual rights. 22 This began to change with the adoption of the individual application remedy in the 2010 constitutional amendments, which came into force in 2012. Since then, the TCC has generally begun to take a rights-oriented approach in its case law, particularly in the individual application procedure. 23
Although the Court has a range of powers, the individual application accounts for the vast majority of the Court's docket. It is a type of constitutional complaint that allows individuals and private legal persons to file petitions directly with the Constitutional Court alleging that a public authority has violated their fundamental rights and freedoms that are secured under the constitution, which falls within the scope of the European Convention on Human Rights (ECHR) and its Additional Protocols, provided that all other domestic remedies have been exhausted. 24 The assessment of individual complaints is carried out in two stages: an admissibility review and a review on the merits. The admissibility review determines whether the application falls under the purview of the TCC's jurisdiction and merits further consideration. The overwhelming number of cases (82% of all concluded applications, including rejections on administrative grounds) have been found inadmissible due to procedural hurdles such as lack of standing, lack of subject matter jurisdiction, non-exhaustion of all other remedies, and being manifestly ill-founded. 25 The high rate of inadmissibility of decisions, which is common among the countries that have implemented a constitutional complaint procedure, 26 stems mainly from the fact that many applicants confuse the individual application system with appeal review. The TCC is not an appellate body, and if it concludes a violation ruling, it may only order a retrial by the relevant court and/or award non-pecuniary damages as a redress measure since it is not vested with the power to quash the judgment of the lower court. The TCC tends to implement the admissibility requirements strictly because of concerns about the high volume of applications, which jumped from 9,896 in 2013 to 109,779 in 2022, resulting in a current backlog of 108,008 applications in the court proceedings as of March 2023. 27
Due to its lack of economic and political clout, labour in Türkiye strives to make up for this by using the legal system to safeguard and advance its interests. It comes, therefore, as no surprise that the number of cases brought by workers in specialised labour courts increased from 407,000 in 2012 to 654,146 in 2022. 28 Employees seeking redress for alleged wrongdoing by their employers accounted for the majority of these cases. Because lower courts are, in general, inclined to lend more weight to the employer's right to manage in cases involving disputes relating to freedom of expression and the right to respect for private and family life, employees usually seek to pursue their claims before the TCC.
The TCC has delivered 69,436 violation judgments (18%) out of 384,235 adjudicated individual applications since the introduction of the individual application. 29 Some 80% of all violation decisions concern the excessive length of proceedings. If these are left out, the number of violation rulings falls to 13,101 (3.4%) in relation to the total number of concluded individual applications, which does not differ much from the experience of other countries with similar procedures. 30 On the other hand, if an application passes the admissibility stage, the success rate is about 93% of all cases reviewed on the merits, excluding violation decisions on the excessive length of proceedings. The TCC has found 3,335 (25%) violations of freedom of expression and 958 (7%) violations of the right to respect for private and family life in total. 31 It is impossible to determine the rate of violations arising from employment related matters since the TCC does not keep statistics on whether the subject matter of the application is pertinent to the employment context.
As the individual application system is closely tied to the European Convention on Human Rights (ECHR), the TCC follows the ECtHR's procedure for reviewing applications regarding qualified rights, which include, among others, freedom of expression and the right to respect for private and family life. In its review, the TCC first assesses whether there is an interference with the right. If it finds that there has been an interference with the right, it then evaluates whether the interference is prescribed by law, has a legitimate aim, and is necessary in a democratic society. When all of these stages are passed, the TCC must carry out a proportionality analysis in accordance with the requirements of Article 13 of the Constitution. In this analysis, the Court examines whether the means chosen to restrict the right are suitable, necessary, and proportional to the legitimate aims pursued.
Individual applications on freedom of expression and the right to respect for private and family life in the employment context
Freedom of expression and the right to respect for private and family life are covered in Articles 26 and 20 of the Turkish Constitution, respectively, imposing negative and positive obligations on the state. Both rights can, nevertheless, be restricted by law for reasons of national security, public order, the prevention of crime, general health and morality, and the protection of the rights and freedoms of others.
Freedom of expression
Employees are increasingly subject to dismissal and disciplinary penalties for their exercise of freedom of expression, particularly on social media, if their employers deem it to be detrimental to their business interests or simply not in accordance with their preferences. 32 The TCC is inclined to protect political social media postings and complaints about working conditions by private sector employees who have lost their jobs as a result of these postings. For example, in one case, the applicants were dismissed just because they ‘liked’ messages posted by third parties criticising police operations. The lower courts accepted that the posts breached the relationship of trust between the employee and the employer, but the TCC noted that the lower courts did not examine the contents of the posts and failed to explain how just pressing like buttons could be viewed as a sign of disloyalty to the employer. 33
Nevertheless, the TCC did not find a violation in a very similar case where a contractual cleaner employed by the Ministry of National Education was fired without compensation for clicking on the ‘like’ button under various Facebook articles with strong political contents posted by third parties. The applicant took the case to the ECtHR, which held that the domestic courts did not thoroughly investigate the content of the contested publications or the context in which they were posted. 34 It also stated that the applicant was a contractual employee subject to employment law, rather than a civil servant with a unique bond of confidence and loyalty to the state. Although workers in private law relationships owe their employers a duty of loyalty, it is not as strong as the duty of loyalty required of government employees. 35 The TCC appeared to have attached undue importance to the cleaner's employment by the Ministry of Education. Furthermore, for the ECtHR, the applicant was not the person who created and posted the contested content, and adding a ‘like’ to the content did not bear the same weight as sharing it on social media.
Following the ruling of the Strasbourg Court, the TCC adopted the view that an employee's freedom of expression should be protected against unreasonable demands of loyalty by his or her employer and expectations of loyalty should be based on the reasonableness criteria. For the TCC, the duty of loyalty towards the employer should not be interpreted in an absolutist manner that negates employees’ rights. It points out that freedom of expression should be interpreted broadly, whereas the duty of loyalty to the employer should not be rendered in an over broad way. 36 Moreover, it has come to accept that the duty of loyalty and confidentiality of employees working under private law to their employers is less stringent than the duty of loyalty owed by employees working in public organisations. 37
In another application, when a worker hired by a contractor working for a state-owned corporation complained about working conditions in a letter to the Prime Minister's Office, he was summarily dismissed for breaking the duty of loyalty to the employer. 38 In its examination, the Court paid heed to the style and possible interpretations of the expression, its context, its impact on the employer's business and reputation, and the severity of the sanction imposed on the applicant. It also underscored the fact that the expressions were not made to the public and were not aggressive or combative in style because they just expressed complaints about working conditions and discriminatory practices. 39 The TCC concluded that the authorities failed to strike a fair balance between the applicant's freedom of expression and the employer's interests.
With regard to applications involving conflicts between freedom of expression and corporate reputation, the TCC has had only one case in which it tilted the fair balance between the employer and the employee in favour of the former. When a group of workers who had been dismissed as a result of an ongoing labour dispute with the employer built a website with an internet domain name combining the brand of the company with the word ‘victims’, the TCC held that the domain name harmed the business reputation of the trademark owned by the company. 40 Access to the website, which included employee criticisms of the company, was blocked as a result of a legal action brought by the company alleging infringement of its trademark rights and corporate reputation. In a split vote, the TCC concurred with the lower court's conclusion that the domain name tarnished the firm's corporate reputation since it had a negative connotation in relation to the company and thus created unfair competition to its disadvantage. 41 Interestingly, the Court did not consider this issue within the scope of freedom of expression but rather confined its investigation to the business interests in the domain name alone, overlooking the contents of the website.
At this point, it is germane to compare the TCC's judgment to the decision of a panel of the World Intellectual Property Organisation (WIPO) Arbitration and Mediation Centre. 42 The WIPO panel addressed a very similar issue of the alleged negative implications of a domain name on corporate reputation involving a well-known Turkish bank. The respondent registered three separate domain names, two of which contained the word ‘mağdurlari’ (victims) just as the above case. The WIPO panel concluded that the domain names with the word ‘mağdurlari’ just included various complaints of customers about services of the bank and had nothing to do with competing with the original name holder in the same field of commercial activity and that the website owner did not act in bad faith. 43 The panel concluded that the content of the relevant websites could be considered within the bounds of freedom of expression if their purpose was not to compete with the owner of the trademark. It appears that a private alternative dispute settlement mechanism was able to protect freedom of expression in contrast to the TCC.
The TCC should have paid attention to the content of the website and the purpose of the publisher, rather than focusing on the company's claims of unfair competition and infringement of its trademark rights, as the employees did not have such a goal. In addition, it should have examined whether the website solely aimed to disparage the company or to inform the public about the ongoing labour dispute in order to criticise the company's policies and treatment of its employees. The issue was a matter of legitimate public concern that may draw the attention of citizens, as the dispute involved a leading delivery company. Moreover, a cursory glance at the relevant ECtHR case law illustrates that the Strasbourg Court takes the view that ‘there exists a strong public interest’ in enabling small and informal campaign groups ‘to contribute to the public debate by disseminating information and ideas on matters of general public interest.’ 44 The TCC missed an important opportunity to protect the freedom of expression of employees since it disregarded analysing the human rights aspects of the case in question because of its narrow understanding of the dispute as a matter of trademark abuse.
The Turkish Court treats the freedom of expression of public employees differently from that of private sector employees because the state has legitimate expectations of loyalty from the former, which is contingent on more stringent rules compared to private employment. This does not indicate that civil servants are deprived of enjoying protection of freedom of expression. On the contrary, the TCC emphasises that they are entitled to air their views on various issues, particularly those concerned with problems of the country. For example, the court ruled that disciplining a public official for simply sharing a political party's messages posted by others, which the authorities viewed as propaganda in support of a particular political party in opposition, was not necessary in a democratic society. 45 A statement's connection to political parties or topics does not, in itself, imply that it supports any particular political party, and as such, it does not contravene the principle of the impartiality of the public servant. 46
In a very recent case, a public employee posted a comment on Facebook under a photo of a mosque built in the President's hometown, referring to it as ‘a basilica built by the emperor,’ and was disciplined for the remark. Although the applicant was acquitted of the accusation of defaming the President by the local administrative court, the regional administrative court of appeals quashed the ruling and concluded that the applicant insulted the President. The judgment of the court of appeal was without clear reasoning, as it did not explain why the emperor analogy was insulting. 47 It also failed to provide a relevant and sufficient justification demonstrating that the disciplinary action corresponded to a pressing social need. The TCC rendered a violation judgment, highlighting that disciplinary penalties applied in response to statements of opinion will have a deterrent effect on the freedom of expression of public officials. 48
A number of applications have involved cases of public officials shouting political slogans at various political and social gatherings. For example, at the funeral of a victim of a terrorist attack, an applicant shouted the slogan ‘the murderer state will be held accountable.’ He was reprimanded for ‘acting in a manner that would undermine the dignity and trust of a civil servant,’ as specified in the Public Servants Law. The TCC underlined that the applicant's speech intended to draw attention to the alleged failure of the state to prevent the terrorist attack because, according to some reports, it had had intelligence about it. Accordingly, the applicant's statement was related to the issue of whether the state acted properly, which was, undoubtedly, an issue of great public concern and the TCC ruled that the applicant's freedom of expression was violated. 49
On the other hand, the TCC has set limits on the freedom of expression of certain public servants, especially in cases involving teachers. It refrained from finding a violation when the political speech that prompted a disciplinary measure was delivered in a contentious political environment and contained unfounded allegations that could potentially exacerbate already-tense conditions, and the disciplinary measure was relatively light. Therefore, it saw no issue with a teacher being transferred to another school in the same province as a result of a disciplinary inquiry after harshly criticising the Prime Minister and security forces during mass public demonstrations against the government in the Gezi Park protests 50 on Facebook.
Examining the content of the post, its context, and the professional position of the applicant, the TCC argued that while civil servants have the right to express their political views and opinions regarding issues of public concern, they should do so in a balanced and politically-neutral manner. 51 Emphasising that the public authority enjoys a wide degree of discretion, the TCC observed that the transfer did not impose a particular hardship on the applicant.
In similar fashion, the TCC did not find a violation when a teacher posted a message on Facebook purporting that the government would use a militia to suppress the anti-government demonstrations in the Gezi Park protests. 52 The Court held that the content of the post was incompatible with the responsibilities associated with being a public official because the post contained unfounded allegations that had the potential to escalate political tensions in a highly tense and delicate situation. In addition, the applicant was only given a warning, the least severe disciplinary penalty, and as such, it was proportional. 53
In these judgments, however, the TCC did not assess the applicants’ claim that the disciplinary penalty placed on them would harm their career as they would be unlikely to be promoted to a higher rank. 54 In addition, it made no assessment of the lower court's acceptance of the disciplinary committee's reasoning, which indicated that the applicant's continued employment at the same school would set a bad example for other teachers and erode confidence in the school administration. 55 The lower courts and authorities failed to specify any adverse effects of the applicant's Facebook message on order and harmony at work and or students, parents, teachers, and other members of staff. In order to support its reasoning in the judgments, the TCC approvingly cited an ECtHR case concerning the disciplinary transfer of a teacher of Islamic religion because of his remarks in an open letter to the press concerning the January 2015 terror attacks on the satirical magazine Charlie Hebdo. 56 The ECtHR noted that the remarks in question were not compatible with the applicant's duty of discretion as a teacher, especially given the tense atmosphere in his school in the aftermath of the Paris attacks. The court found the application manifestly ill-founded since the applicant's disciplinary transfer to another school in the vicinity was not disproportionate.
In dismissals arising from alleged connections with terror organisations, the TCC has examined whether the decision to terminate the employment contract is based on valid reasons. An employee was sacked from the Istanbul Stock Exchange because of her alleged connections with the terror organisation FETÖ/PDY 57 following an investigation by the Public Prosecutor's Office, which did not lead to the applicant being charged. The employer justified its decision to dismiss on the employee's breach of trust and cited her access to certain Internet websites as evidence of her affiliation and connection with FETÖ/PDY. The TCC noted that the websites were accessible to general public and the lower court did not find that the applicant's access to the sites had a significant detrimental impact on her performance at work. 58 Neither the employer nor the local court provided any explanation for how access to the aforementioned sites fell was evidence of affiliation with the terrorist organisation, or how it equated to conduct that sought to spread or legitimise the terrorist organisation's views. 59
In its review of the employee's freedom of expression at work, the TCC examines whether a fair balance has been struck between the applicant's freedom of expression and the extent to which free speech in the employment relationship can be restricted. It has developed several criteria in its evaluation of these cases drawing on the ECtHR case law, 60 which include the nature of the speech in question, the aim of the applicant, whether he or she acts in good faith, the content of the expression, whether it is solely used for the purpose of harming third parties, its effects on the life of the targeted person and the severity of the sanction imposed. 61 In addition, for the public sector, the authorities are expected to demonstrate how the public employee’s speech results in political polarisation and impinges on the continuity, effectiveness, efficiency or proper performance of public services. 62 Finally, the disciplinary penalty should not be disproportionate as the Court also considers the severity of disciplinary action in its reviews.
The right to respect for private and family life
In accordance with the right to respect for one's private and family life guaranteed by Article 20 of the constitution, the TCC reviews issues related to employees’ lifestyles and particular aspects of their employment lives, with a focus on the monitoring of employee personal data by employers, access to the right to work, dismissals, and the prohibition of discrimination. In the early stages of the individual application system, the TCC was hesitant to include employment-related topics under this right, but as the case law has evolved, it has embraced a broad conception of the right. Applications on issues ranging from email surveillance to intimate relationships at work have been submitted to the court.
The ever-increasing use of electronic communication tools has given rise to many problems because of its personal data protection and privacy implications in the context of the employment relationship. Within this context, the question of whether employers can inspect their employees’ corporate email accounts has been a controversial one, and has been the subject of some recent TCC judgments involving dismissals. 63 In addition to Article 20 of the Constitution, the TCC investigates cases on the right provided for under Article 22 of the Constitution, securing freedom of communication. It makes use of the criteria developed by the ECtHR in Barbulescu v. Romania, 64 consisting of prior notification of monitoring correspondence and other communications, the scope and duration of the monitoring, the level of intrusion into the employee's privacy, the presence of valid reasons to justify monitoring the communications and accessing their actual content, and whether the employer could have used less intrusive measures without having direct access to the content of the employee’s communications. 65
In its analysis, the Turkish Court first considers whether the employer has legitimate grounds to interfere with the employee’s the right to respect for private and family life and freedom of communication. It does not, in principle, object to employers having access to corporate email accounts in order to review their content because they have a valid interest in running their business effectively, realising harmonious working relationships, and protecting business reputation. They have the right to regulate electronic or other communications by their employees at work as long as they have been properly informed in advance, but their authority and discretion must not violate the fundamental nature of the employees’ basic rights, and if necessary, the severity of the disciplinary measures should be proportional. 66 This notification should cover the legal basis and purposes of the examination of the communication and the processing of personal data, the scope of the supervision and data processing, the period of storage of the data, the rights of the data owner, the results of the supervision and processing and the possible beneficiaries of the data. 67
Besides, the TCC assesses whether the employer could attain the intended aim in a less intrusive manner that would not be tantamount to a disproportionate intervention with the right. The Court has found violations of the right to respect for private life and the freedom of communication if employees are not previously notified of the employer's data processing activities and the employer fails to justify why the contents of communications are accessed without the consent of employees. 68 The reasoning resonates well with the Barbulescu decision, in which the ECtHR underscored that even though the employer issued a prior notification, it did not justify a complete prohibition of employees personally communicating with family and friends while at work. 69 A corporate policy to the contrary would be an unwarranted invasion of employees’ privacy. 70
The TCC scrutinises if the employer has a legitimate goal for monitoring employees’ electronic devices, even if he or she issued a prior notification. When an employee was dismissed because of the contents of WhatsApp messages that allegedly slandered and defamed the company and its managers, the TCC maintained that although the employer had the right to monitor communication tools provided to employees and to place limitations on their usage within the bounds of his discretion for legitimate purposes, he overstepped his authority. It found that the dismissal of the applicant for his WhatsApp conversations breached his right to respect for private life and freedom of communication as the employer had failed to provide legitimate purposes for monitoring employees’ computers. 71
In a similar case, management considered the applicant's remarks regarding the organisation and its employees during a conversation with a former employee offensive and derogatory. The management came across these remarks in its examination of the contents of communications on the company-provided mobile phone between the applicant and the former employee who had returned it to the company. Although the company purported that it had examined the mobile phone to gain access to information about its customers, it was unable to convince the TCC, which pointed out that employers do not have unlimited and absolute discretion over the use of communication tools as freedoms in a democratic society should also be respected in the workplace and a fair balance must be struck between the parties’ competing interests. 72 It pointed out that providing a communication device to an employee does not grant the employer an unrestrained and unqualified right to monitor that employee's conversations on that device. In the Court's opinion, the lower courts failed in their hearings because they did not consider whether any legitimate reason existed for the inspection of the applicant's mobile phone and the impugned remarks provided a just ground for the dismissal of the applicant. 73
In some applications, the applicants’ personal relationships constitute the basis for the termination of their employment contracts. For example, in one case, the two applicants were fired for breaching trust and good faith after the wife of one of the applicants sent a copy of the applicants’ e-mail exchanges to company management, demonstrating the applicants’ intimate relationship. According to corporate regulations, employees were not permitted to use their computers, institutional e-mail accounts, phones, or other communication instruments for personal purposes other than those that are absolutely necessary or for conduct contrary to public morals and customs. Since the petitioners consented to the corporation monitoring their electronic correspondence without prior notification, the TCC noted that the applicants had agreed to abide by workplace regulations as part of their employment contract. 74 Consequently, they breached the terms of their contract by using their institutional e-mail accounts for personal correspondence during business hours. Therefore, the Court concluded that the applicants did not have reasonable expectations regarding the protection of their confidential private correspondence. 75
This was one of the early decisions of the Court on the subject, and it can be plausibly contended that the Court disregarded the invasion of privacy of the applicants. Latterly, it appears to have begun to give more weight to privacy concerns over workplace discipline and business efficiency in similar applications, subjecting employers’ interests in promoting effectiveness and maintaining discipline to close scrutiny. For instance, the TCC ruled that just because an employee has an extramarital affair with a co-worker, it cannot be a legitimate ground for dismissal unless the adverse consequences of this relationship on the conduct of work and occupational health and safety are demonstrated by the employer. 76 According to the Court, the notion of immorality is open to a wide range of interpretation due to its highly subjective nature. The employer bears the burden of proving the adverse impact of such an affair on the workplace because the TCC seeks the existence of a causal relationship between the alleged immoral behaviour and its negative impact on job performance as a prerequisite for a fair dismissal. Otherwise, the mere existence of such a relationship would almost always result the parties involved in the romantic relationship being fired. 77
Biometric data and the health conditions of employees have been the subject of a number of individual applications. When a municipality set up a fingerprint tracking system to monitor whether the personnel complied with the official working hours, the TCC ruled that the collection and storage of fingerprint data from employees for workplace surveillance purposes infringes the right to personal data protection in the context of the right to respect for private and family life. 78 For the Court, biometric data cannot be collected unless the conditions set by the Personal Data Protection Law are satisfied. 79 In this context, the employer must inform and obtain consent from his or her employees regarding the scope, purpose, and consequences of the processing of personal data. In the case in question, the applicant refused to give his consent to the processing of his biometric data. Furthermore, the use of biometric data to monitor employees’ working hours is not legislated for in the relevant law. Accordingly, the TCC decided that the interference did not meet the legality requirement and issued a violation ruling. 80
An interesting case involved an applicant who was forced to leave his job because he was diagnosed as HIV-positive. Inferior courts found the employer to be justified in dismissing the employee as his goal was to protect the health of other employees. 81 In his petition to the TCC, the applicant claimed that he had been wrongfully dismissed from work because of his health condition, which amounted to discriminatory treatment. In line with ECtHR case law, 82 the TCC regarded those living with HIV as a vulnerable group exposed to stigma and prejudice. 83 Noting that the applicant was not offered any position in the company that would pose a minimal health risk to his colleagues, the Court found that the applicant's right to protect his corporeal and spiritual existence, safeguarded by Article 17 of the Constitution, was violated. Furthermore, the applicant complained that, despite his request for confidentiality, the lower courts hear his case publicly. Highlighting the significance of respecting the confidentiality of health data of HIV-infected people, the Court also held there was a violation of the applicant's right to protection of personal data, which is one of the components of the right to respect for private and family life. 84
The TCC has also received applications in cases involving mobbing or psychological harassment at work. Drawing on special reports on the subject prepared by the ILO and the Ministry of Labour and Social Security, the Court has developed criteria to define mobbing, according to which it involves systematic, continuous, and intentional behaviour aiming to intimidate and socially exclude the victim. It must also cause serious harm or a grave danger of harm to the victim's personality, occupational status, or health. 85 On this basis, the TCC found a violation in the Ebru Bilgin application, in which a public veterinarian grumbled that frequent disciplinary proceedings initiated arbitrarily against her by the head of the department amounted to mobbing as they reached an unbearable level of severity and gravity in terms of their effect on her life. Applying its criteria for mobbing, the TCC handed down a judgment finding a violation, asserting that the authorities had not fulfilled their obligations to prevent the psychological harassment. 86
The private conduct of public employees off duty has also been a topic the TCC has addressed. An interesting case was Z.A., in which a gay teacher was fired for acting ‘in a disgraceful and embarrassing manner inappropriate for a civil servant.’ His application for reinstatement into the teaching profession was rejected on the grounds of his ‘act and conduct,’ which implied his homosexual activity, when a nationwide administrative amnesty allowed all civil servants discharged on disciplinary grounds to be reinstated. The TCC acknowledged that the applicant's claim of discrimination was founded on a reasonable and serious basis. However, in a non-unanimous vote, the TCC determined that the applicant's right to respect for private life had not been violated. Relying on the Fernandez Martinez v. Spain decision of the ECtHR, the Turkish Court observed that teachers who work with young children may be subject to specific restrictions that do not apply to other professions since these children may be influenced by teachers’ attitudes. 87 During the disciplinary investigation, however, neither the school administration nor the other teachers reported that the applicant's sexual orientation had a negative impact on the pupils. The TCC overlooked this information in its decision, along with the prejudice and hostility towards gay people that are already pervasive in society.
Regarding the dismissals of public employees for their alleged links to, affiliations with, or sympathetic views of terrorist organisations, the TCC is inclined to take a deferential stance. For example, a cleaner was fired by a municipality because of his affiliation with the FETÖ/PYD terrorist organisation. The cleaner was a member of the board of directors of an association that had been closed down because of its links to the terrorist organisation, and his membership of the board was accepted as evidence of his involvement with the organisation. 88 The main question before the court was whether the dismissal pursued a legitimate aim and was ‘necessary in a democratic society.’ Against this background, it looked at the harm and impact of the dismissal on the applicant's social environment and reputation and the existence of convincing explanations and justifications for the application of this measure. 89 It drew attention to the fact that the terrorist organisation in question had an unusual hierarchical structure, in which even lower level employees could hold prominent positions. In addition, no restrictions were imposed on the applicant working in the private sector. 90 Therefore, the TCC concluded that the dismissal of the applicant did not rise to the level that would result in significant harm to the applicant.
Discussion
The economic power, discretion and dominance employers have over employees pose challenges to the latter's enjoyment of human rights at work and beyond, and should not be used in a manner that gives free rein to the former to determine the value of speech and the limits of privacy, because they may misuse their power over employees who hold opinions or have a lifestyle they are uncomfortable with or object to. 91 Otherwise, employer power is likely to have a chilling effect on employees who may avoid exercising their rights, fearing reprisals from their employer. 92 These considerations should not imply that employee free speech or privacy interests must take precedence over corporate concerns because employees have a duty of loyalty to their employers, and the purposeful infliction of reputational damage may breach that duty. If such conduct endangers business efficiency and interferes with the employee's ability to do his or her job, then the employer is legitimately entitled to take disciplinary action. When an employee's private activities clash with workplace norms, it might be difficult to decide whether he or she has breached his or her duty to be trustworthy or has just exercised his or her constitutional rights. 93 For example, in Palomo Sanchez and Others, the ECtHR did not find a violation because the applicants’ critiques of their colleagues and management went beyond the bounds of fair criticism and were extremely disrespectful, insulting and offensive to their co-workers and superiors. 94 Nonetheless, as a general rule, simply because employees express opinions and engage in private conduct that the employer disagrees with, it should not result in dismissal or severe sanctions. 95
The TCC has developed a line of case law evaluating the compatibility of dismissals and other disciplinary measures with constitutional rights of employees. For the TCC, while the employer has a wide degree of discretion in running his or her business, this does not imply that his or her powers are not subject to constitutional requirements. According to the Court, restrictive and mandatory workplace rules should not run counter to the core of the employees’ fundamental rights, and employees have a legitimate expectation that their fundamental rights and freedoms will be maintained in the workplace. In this way, the Court aims to strike a balance between the employee's constitutional rights and the employer's legitimate interests. In its examination of the applications, the TCC uses proportionality analysis to assess if the interference with the right is constitutional. In this context, it pays a particular attention to the severity of sanctions imposed on the employee and whether a less severe alternative has been considered.
The TCC mainly draws on the positive obligations approach of the ECtHR in adjudicating individual applications, which calls for the state to take positive measures to ensure the effective protection of basic rights and freedoms when these rights are infringed in relations between private individuals. 96 It has developed a number of criteria for resolving the clash between freedom of expression or the right to respect for private and family life of the worker, on the one hand, and organisational interests, on the other. The driving principle of the TCC's case law is the application of a proportionality test, with special consideration given to the validity of the aim pursued and the appropriateness of dismissal over less severe disciplinary sanctions being imposed on the employee. It requires lower courts to undertake a review that should include a proportionality analysis of the interference to the legitimate aim pursued, job performance of the employee, terms of the employment contract pertaining to its restrictiveness and coerciveness, and reasonableness of the termination of the contract. 97
Weighing up the interests at stake, the TCC gravitates towards interpreting freedom of expression and the right to respect for private and family life in a way that expands the scope of constitutional protection for labour. While employees may be subject to restrictions at work, these rules must not infringe on the substance of their fundamental rights. If they are not specified by the employer, the employees will have reasonable expectations that they will not be subject to any arbitrary interference with their fundamental rights and freedoms. 98
In freedom of expression cases, the TCC generally safeguards not only political speech but also offensive, critical, and derogatory remarks. It recognises that disciplinary action for social media posts may pursue a legitimate aim in terms of workplace performance, harmonious relations at work and business reputation, but does not take the legitimate goal at face value as it closely pores over it. There is no doubt that when employees engage in controversial social media activity regarding sensitive societal and political issues and post unpopular views, the company may find itself embroiled in political conflicts, which may result in some harm being caused to the organisation. Employers have the right to use their disciplinary powers in specified instances to enhance workplace performance, protect employees, customers, and others from harassment, and maintain company reputation. Yet, courts should tread carefully when weighing up these cases because alleged harmful social media activity might be used as a pretext for suppressing minority, critical or unpopular opinions or for other reasons related to employment relations.
The TCC's review of privacy applications is centred on whether the employer has notified his employees that their communications are being monitored and whether this has a legitimate basis. In the court's view, employers must put in place the appropriate protections to safeguard their employees’ privacy. If an employer fails to follow internal procedural norms or does not have such procedures, the TCC is likely to find a violation. The issue of the employer's reputation should be treated with caution since it may conceal an employer's moralistic views on how employees should live their lives, or lead to the imposition of majority views on individuals, minorities, or other groups. 99 As we have seen, the TCC initially approached this matter as a component of employer discretion, particularly in respect of intimate relations at work, but has since taken a more pro-privacy stance.
The TCC appears to provide stronger safeguards for employee speech and privacy in the private sector than in the public sector, as it is disposed to upholding public employers’ interests in interfering with their employees’ speech and private lives. In the Court's view, the loyalty and obligations of private employees towards their employers are not as extensive as those required of civil servants and other public officials. The Court's generally deferential attitude towards public employers allows for plenty of room for employer discretion. This is especially true for certain public officials, such as school teachers.
By contrast, the TCC expects private employers not to penalise their employees for non-performance-related behaviour, such as internet postings, as long as they do not do significant harm to the organisation and its reputation. It emphasises that private conduct both inside and outside the workplace should not result in dismissal unless the negative impact on the business can be established, and disciplinary measures should be proportionate to the legitimate goal pursued.
It can be claimed that since the TCC declares a great number of applications inadmissible and rejects them for review on the merits, the individual application remedy only provides limited protection for labour's human rights at work. At first glance, this may ring true, but considering that one of the main goals of the individual application system is to draw attention to structural problems in laws and their application rather than solely offering individual remedies to the complainant, successful applications that raise serious constitutional issues may trigger legal change and reform as well as create a rights-consciousness among employees. Indeed, the use of human rights litigation may induce changes in laws and legal culture. 100 However, we must not invest too much hope in the potential to overcome structural inequalities just through legal means.
Conclusion
The article has explored the application of human rights in the employment context through the lens of TCC case law of freedom of expression and the right to respect for private and family life under the individual application remedy. We suggest that this procedure has created a new way of defending human rights of labour, allowing employees to challenge employer-imposed restrictions that violate their constitutional protections. Thus, the elevation of employees’ free speech and privacy concerns in employment relations, from an understanding and examination based on the terms of the employment contract to a constitutional level of review, shore up the emergence of stronger safeguards for their enjoyment of basic human rights.
Using constitutionally-enshrined and other international human rights norms, the TCC has made a contribution to the protection of employees’ human rights at and beyond work, though some its rulings are not up to scratch as we have seen. It is important to note that the TCC's case law does not generally fall short of widely accepted international human rights norms as exemplified by the jurisprudence of the ECtHR. The fact that the Turkish court adheres closely to the relevant case law of the ECtHR also bolsters rights of employees. While addressing labour issues, the TCC makes a distinction between public and private employees and offers more protections to the latter since the former are required to show a greater degree of loyalty to the state than the latter are to the employer.
On the other hand, we must be cautious not to overestimate the role of individual applications in providing constitutional human rights safeguards to employees. Although the TCC has not hesitated to engage in human rights scrutiny of the lower courts’ rulings, it has been careful not to set aside procedural requisites in addressing labour concerns as it strictly implements admissibility criteria in its review of individual applications. In addition, it is unrealistic to expect a judicial body to rectify all shortcomings of a legal order, organisational habits and customs and traditions in the world of work. The TCC's judgments may not generate quick legislative reforms, changes in business culture or in employment relations that are attentive to human rights because weighty interests are at stake, but they can be a catalyst for long-term change, awareness-raising, and be used as evidence in litigation before ordinary courts, particularly labour courts. At any rate, employees have an opportunity to be heard at a constitutional level due to the existence of direct access mechanisms such as the individual application remedy. Such procedures provide a window of opportunity to realise constitutional protection of the human rights of labour in the employment relationship, albeit subject to some constraints.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
