Turkey

    1.1 In what circumstances does the employee transfer law apply?

    The employee transfer law applies when an undertaking is transferred to another employer as a result of a legal transfer. A transfer will have taken place when the workplace transfers to a new employer.

    Note that in the case of demergers or partial demergers, employment contracts transfer to the transferee with all rights and obligations existing on the transfer date, unless the employee objects to the transfer.

    A transfer may be for economic or technological reasons or because of a restructuring. The key is that the identity of the employer changes.

    The rules do not apply to liquidation as a result of insolvency.

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    Author: Bener Law Office 

    Date: October 2016

    1.2 Does the employee transfer law apply to (a) a sale of a business or (b) outsourcing?

    (a) Sale of a business

    The rules on transfers apply to sales, rentals, mergers, acquisitions and gifts. The legal reason for the transfer matters less than the fact that there is a change of employer.

    (b) Outsourcing

    The issue of whether outsourcing is regarded as a transfer is controversial in Turkish law. The transfer of one part of the work to another employer could be regarded either as a ‘sub-employer relationship’ or a transfer under Turkish law. However, no case law exists to settle this question.

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    Author: Bener Law Office 

    Date: October 2016

    1.3 In outline, what are the implications of the employee transfer law?

    All workers defined as ‘employees’ in labour law, who are subject to a transfer of their employment, are protected. If the employee transfer rules apply:

    • Collective agreements and union recognition arrangements automatically transfer (as part of the employees’ employment agreements or as a collective agreement, depending on whether the new employer already has a collective agreement).
    • The transferor and the transferee become jointly liable for the debts accrued before the transfer and payable on the transfer date. However, liability of the transferor is limited to two years of the transfer date (with the exception of severance payments).
    • If an employee is dismissed solely by reason of the transfer, the dismissal is automatically unfair.
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    Author: Bener Law Office 

    Date: October 2016

    2.1 Who transfers?

    Generally speaking, the employment agreement transfers to the new employer with the same terms and conditions. Therefore the new employer is obliged to employ the employee with the rights and provisions set out in its employment agreement, as executed with its former employer.

    However, note that if the employee only performs part of his or her duties for the aspect of the business that is transferring, the employee will remain with the transferor.

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    Author: Bener Law Office 

    Date: October 2016

    2.2 Can employees object to transferring?

    Employers do not require consent from employees to transfer (except for the consolidation or demerger of companies, which the employee is entitled to contest).  Generally, if an employee objects to a transfer and fails to attend work without permission for two days within one month in protest, this will be justified grounds for dismissal.

    If the rights of the employee have not been retained following transfer and the employee has not consented to the changes in his or her employment agreement, he or she may terminate the employment agreement and will be entitled to severance pay and possibly other compensation relating to salary.

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    Author: Bener Law Office 

    Date: October 2016

    2.3 What happens to terms of employment contracts?

    The terms of the employment contracts will be unaffected by the transfer and will be binding on both the employee and the transferee on completion of the transfer. 

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    Author: Bener Law Office 

    Date: October 2016

    2.4 What about other employee benefits?

    All benefits to which employees are legally entitled must be provided by the transferee. This applies even to hard-to-transfer benefits, such as profit shares or share options. If the transferee wishes to amend a benefit, it must inform the employee in writing. If the employee accepts within six business days, the employer may amend it, but if not, the amendment will not bind the employee. However, if there is a good reason for the amendment, such as a poor financial situation, non-acceptance may be a valid reason for termination.

    Past employment with the transferor count as ‘continuous employment’ with the transferee.

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    Author: Bener Law Office 

    Date: October 2016

    2.5 What happens to pension rights?

    In Turkey, no special regulation or case law exists with regard to occupational pensions. However, we are of the view that given the rules on automatic transfer of rights and obligations of employees, workplace occupational pension plans must also be transferred to the new employer. The terms of each benefit should be maintained. Therefore, any private or public pension rights of employees, as provided by the transferor will remain intact and the transferee will be required to fulfill those obligations.

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    Author: Bener Law Office 

    Date: October 2016

    2.6 What liabilities transfer?

    The transferor and transferee are jointly liable for all liabilities to transferred employees which are due as of the date of the transfer. The transferor will remain liable to the employee for up to two years following the date of transfer for rights acquired up to that date. The transferee employer is liable as of the date of transfer to continue to provide the same benefits that the employee enjoyed up until the date of transfer. 

    However, the liabilities that transfer are those that arise from the employment agreement and therefore liabilities such as (but not limited to) criminal liability, including administrative fines and insolvency are excluded from the scope of the transfer.

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    Author: Bener Law Office 

    Date: October 2016

    2.7 Do collective agreements transfer?

    Even if the transferee has a collective agreement in place within the same business field, the rights and liabilities arising from the collective agreement applied at the transferor will continue to apply to transferred employees from the transferor.

    If the transferee company does not have a collective agreement in place, the rights and liabilities arising from the collective agreement applied at the transferor’s business will continue until a new collective agreement is agreed.

    If there is no collective agreement that applied to the transferor’s business but the transferee’s business is subject to one, that agreement will apply to the transferred employees.

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    Author: Bener Law Office 

    Date: October 2016

    2.8 How does the transferee obtain information on transferring employees?

    There are no specific provisions in relating on to how the transferee should obtain information and consultation requirements exist in this respect. Therefore, how this is done is a matter for the parties to the agreement.

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    Author: Bener Law Office 

    Date: October 2016

    3.1 Can employers make changes to employment contracts?

    Any changes to employment conditions must be favourable to the employee and the employer must obtain written consent from the employee for any material changes, such as to working conditions. Without consent, the changes will not be binding on the employee.

    There is nothing in law restricting what the reasons for the changes might be, for example, the transferee might wish to restructure the organisation.

    There are no time constraints relating to how long after a transfer changes can be made.

    There are also no specific provisions about harmonising terms with existing employees, but there is case law to suggest that reasonable harmonisation of terms can be done by the transferee, without the consent of employees.

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    Author: Bener Law Office 

    Date: October 2016

    3.2 When can employers safely dismiss employees before or after a transfer?

    Once the fact of a transfer is known, if an employee is dismissed before the transfer, whether the dismissal is ‘justified’ or ‘valid’ will be closely scrutinised. Dismissal by reason of the transfer itself is not permitted. However, changes can be made for economic, technical or organisational reasons provided that the new employer establishes a justified reason.

    The reasons for a termination after transfer has taken place are the same as in normal circumstances: the new employer must establish a ‘valid’ or ‘justified’ reason for termination as defined in law. However, again, if a transfer has recently occurred, the reason for termination will be closely examined.  

    If the court considers a termination to have been invalid, it will declare it ineffective.

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    Author: Bener Law Office 

    Date: October 2016

    4.1 Who must employers consult?

    As a general rule, there is no need to obtain consent from any authorised body and it is not mandatory to inform the employees or their trade unions or representatives of the transfer. However, it is of course good practice to do so.

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    Author: Bener Law Office 

    Date: October 2016

    4.2	What information must they provide?

    There is no requirement to provide information of any kind.

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    Author: Bener Law Office 

    Date: October 2016

    4.3	What does consultation involve?

    There is no requirement to consult.

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    Author: Bener Law Office 

    Date: October 2016

    4.4	How long does consultation last?

    There is no requirement to consult.

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    Author: Bener Law Office 

    Date: October 2016

    4.5	What happens if an employer fails properly to inform or consult?

    There is no requirement to consult.

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    Author: Bener Law Office 

    Date: October 2016

    5.1	Identify up to three issues in this country of which employers should be aware?

    Transferred employees have a right to be informed that the employer’s liabilities and obligations arising from their employment agreements and the law will remain in force. Their seniority, social rights and benefits will be calculated from the beginning of their employment with the transferor.  

    Employee transfer law has existed since 2003. However, the significant areas of uncertainty still remain. For example, in some cases, it is not still certain if a transaction will be deemed to be a transfer.

    Consultation and information liabilities between the employers and the employee in cases of transfers are not expressly regulated under Turkish Law. This contrasts with EU law. In addition, employees have no right to object to a transfer, except on mergers and demergers. This is, arguably, not consistent with Turkish labour law, which generally ensures employees are favoured.

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    Author: Bener Law Office 

    Date: October 2016

    5.2	Would the employee transfer law apply on a cross-border transfer into or out of this country?

    The law applies to foreign employees transferred to Turkey. However, for those employees subject to the law who are sent abroad, the respective country’s labour laws will apply. The only exception to this rule is for temporary assignments (secondments). 

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    Author: Bener Law Office 

    Date: October 2016

    6.1	What are the main national laws protecting employees upon transfers of businesses?

    Article 6 of Law No 4857 provides rules which are in line with EU employee transfer rules.

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    Author: Bener Law Office 

    Date: October 2016

     

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