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Mobbing in labour law, that is, psychological harassment, is a problem that can directly affect an employee’s personality rights and working life. Psychological harassment, or mobbing as it is known in English, exists in every kind of working environment around the world. In this article we address the definition of mobbing, the reasons why it arises, its elements, the regulations in Turkish law and the legal remedies available to the employee.
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This article was prepared in accordance with the legislation and practice in force on the date of its publication. Some of the institutions and application channels referred to in the circular, and the related practice, may have changed since then. You are advised to consult a lawyer regarding the current position.
A human being who is part of working life is a creature that acts within a framework of reason under the influence of their emotions. For this reason, they try to carry on with their life by keeping their psychological state sound under the stress and responsibility of working life. This does not differ between the public and private sectors; ultimately, the subject in both is the human being. In working life it is inevitable that people interact with one another and are part of a hierarchy or a division of tasks. However, within this working life and environment, people may behave differently towards one another, whether as employer, superior, subordinate or in a horizontal position. When such behaviour, pursued for various purposes, crosses a certain line and harms personality rights, the person exposed to it will naturally be affected emotionally; this will affect their working life and will also manifest itself in their social and family life.
Although it is not defined in the Turkish legal system, the concept of mobbing was first addressed in the Turkish Code of Obligations. Article 417 of the TCO provides:“The employer is obliged to protect and respect the employee’s personality in the employment relationship, to ensure an order at the workplace consistent with the principles of good faith, and in particular to take the measures necessary to ensure that employees are not subjected to psychological or sexual harassment and that those who have been so harassed suffer no further harm.” Mobbing thus found expression in legislation for the first time. Before that provision, however, mobbing had first been defined in a judgment of the Ankara 8th Labour Court. According to that definition:“The concept of mobbing covers all forms of ill-treatment, threat, violence, humiliation and similar conduct applied systematically to individuals at the workplace by their superiors, by colleagues at the same level or by their subordinates.” Many definitions have since been offered, and they are broadly similar.
“The concept of mobbing includes all kinds of ill-treatment, threats, violence, humiliation and similar behaviour systematically inflicted on individuals in the workplace by their superiors, colleagues at the same level or subordinates.”
Decision of the Ankara 8th Labour Court
Mobbing began to be discussed above all because of the fall in productivity it causes in working life. Once identified, the underlying causes were investigated: why is the victim subjected to such conduct? What conduct on the victim’s part leaves the door open to the bully? Why does the bully wish to wear the victim down? We may perhaps look at the matter from its legal side — did it occur at the workplace, is there harm, is there a protected legal interest? — but in order to establish those matters correctly the underlying psychological causes must also be identified and examined.
Seen first from the victim’s perspective, these are people who quietly get on with their work; who are honest and trustworthy; who notice the shortcomings of others and try to put them right without confronting them. Precisely because they belong to no particular group, they may be seen as a threat by other groups. Because they may be promoted in future, attempts are made to block their path or to make them leave.
A hierarchical structure creates an environment favourable to mobbing, because those at the upper levels remain unaware of the psychological pressure exerted at intermediate levels. Worse still, the situation may become accepted and turn into an established workplace practice.
Those who engage in mobbing — the bullies — may do so out of a desire to gratify their ego, or in order to conceal their own inadequacies. Psychological harassment may also arise from differences of sex, race or belief. Such conduct is also contrary to the employer’s duty of equal treatment under the Labour Law and to the principle of equality laid down in the Constitution.
The article examines the elements of mobbing under the following four headings:
Pursuant to Labour Law Art. 2/1, the workplace is; “the unit in which the employer organises material and immaterial elements together with the employee for the purpose of producing goods or services” and the article goes on to provide that persons working within the work organisation at connected places, annexes and vehicles where that organisation is carried on are likewise regarded as working at the workplace. Where, for the purposes of mobbing, there is a causal link between the work carried on and the conduct in question, the employer is under a duty, in accordance with the rules of good faith, to take the necessary measures.
The person concerned must engage in the conduct persistently and systematically. A person may be affected psychologically by conduct carried out without malice in a series of unconnected events; but not every act constitutes psychological harassment. The conduct must be directed at that person for a particular purpose, at intervals, and with a causal link between the acts.
The conduct may consist of a single isolated act, since a single act may have produced that psychological effect on the person. Conversely, it may continue over a very long period. Its effect may differ from person to person. It cannot therefore be inferred that conduct whose effects are not apparent amounts to mobbing. Where the conduct occurs more than once, the intervals between the acts must not be very long: where the effect of one act has faded, a subsequent act will not produce the same effect. It makes no difference, on the other hand, whether the conduct is engaged in by a single person or by a group. The same conduct may be engaged in by two members of a group on one occasion and by the whole group on the next; for the purposes of continuity, it may also be engaged in by different persons for the same reasons.
Psychological harassment gives rise to psychological problems in the person at various stages, and a number of health problems may follow. When the mobbing begins, victims try to correct themselves and look for the fault in themselves. This leads to increased stress and, with it, to conditions such as insomnia and loss of self-confidence. Because of that stress the person may behave out of character in their social life, and may become estranged from their family. As matters progress, the inability to cope with stress and the continuation of the harassment may leave the person unable to perform professionally as expected, and they may even have to abandon their goals. As the severity increases and the process is prolonged, the person may suffer weight loss or be driven to suicide, and may face panic attacks, anxiety crises and even a heart attack.
In Turkish law, mobbing was first addressed directly in Circular no. 2011/2 on the Prevention of Psychological Harassment at the Workplace. That circular contains provisions concerning both public institutions and private workplaces and emphasises the need to prevent mobbing. The following measures are provided for:
After the circular, psychological harassment found a place in the Turkish Code of Obligations. There is, however, still no direct provision in the Labour Law, to which the majority of employees are subject. Mobbing is addressed under the Turkish Code of Obligations, the Labour Law and the Occupational Health and Safety Law through the employer’s duties of equal treatment and of care towards the employee, and through the employee’s grounds for termination with just cause.
Under the TCO, the employer’s duty of care towards the employee is set out in Article 417, which expressly refers to psychological harassment. Under that provision the employer is responsible for protecting the whole of the employee’s personality, which includes the person’s mental health. As regards psychological harassment, the employer must first take measures to ensure that such conduct does not occur at all and, where it has occurred, is responsible for preventing it. Liability here is contractual liability under Article 112 of the TCO. In respect of service contracts governed by the TCO, the employee or the employer may exercise the right of immediate termination for just cause under Article 435.
“The employer is obliged to protect and respect the personality of the employee in the employment relationship and to ensure order in the workplace in accordance with the principles of honesty, and in particular to take the necessary measures to ensure that employees are not subjected to psychological and sexual harassment and that those who have been subjected to such harassment do not suffer further harm.”
Turkish Code of Obligations, Art. 417
As mobbing also constitutes a tort, the employee may invoke the employer’s liability under the provisions on tort. In that case contractual liability and tortious liability concur, and the victim is free to choose between them.
The Labour Law lays down the employer’s duty of equal treatment on the basis of the principle of equality set out in the Constitution. Article 5/1 of the Labour Law provides:“No discrimination may be made in the employment relationship on grounds such as language, race, sex, political opinion, philosophical belief, religion or sect.” The employer may not discriminate between employees. Although the provision does not expressly mention psychological harassment, it is plain that an employer who engages in such harassment acts contrary to the duty of equal treatment. Treating an employee differently in order to intimidate them, or assigning them work outside their job description so that they cannot demonstrate their professional ability, are contrary to that duty and may at the same time amount to psychological harassment.
As psychological harassment relates directly to human health, Article 4/1-a of the Occupational Health and Safety Law provides: “The employer is obliged to ensure the health and safety of employees in relation to work and, to that end, shall: a) carry out work to prevent occupational risks, take all measures — including the provision of training and information — organise the necessary arrangements, provide the necessary tools and equipment, adapt health and safety measures to changing conditions and improve the existing situation.” In these terms the employer is placed under a duty of care, just as under Article 417 of the TCO. Employers must ensure the health and safety of employees and endeavour to prevent potential problems; otherwise they will be liable. Where the mobbing directed at the employee consists of continuing conduct, the mental harm caused will not amount to an occupational accident, since an occupational accident must occur suddenly and within a short period. Where, however, the person commits suicide immediately after the pressure to which they were subjected, this will be in the nature of an occupational accident.
Article 24 of the Labour Law lays down the right of termination for just cause for the employee, and Article 25 for the employer. We shall first address the employee’s right of termination arising from being subjected to psychological harassment, and then the employer’s exercise of the right of termination for just cause on account of psychological harassment directed at the employer at the workplace or by one employee against another.
Where the pressure to which the employee is subjected constitutes psychological harassment, the employee may terminate the employment contract with immediate effect on the ground of circumstances contrary to the rules of morality and good faith under Article 24/2 of the Labour Law. As subparagraphs (b) and (c) expressly provide for termination for just cause in respect of situations arising from conduct on the part of the employer, termination for just cause may be sought under those subparagraphs where psychological harassment by the employer is present. The subparagraphs read as follows:
“b) Where the employer uses words or engages in conduct offensive to the honour and reputation of the employee or a member of the employee’s family, or subjects the employee to sexual harassment.
c) Where the employer assaults or intimidates the employee or a member of the employee’s family, or encourages, incites or leads the employee or a member of the employee’s family into unlawful conduct, or commits against the employee or a member of the employee’s family an offence punishable by imprisonment, or makes serious, unfounded allegations or accusations damaging to the employee’s honour and dignity.” where such conduct bears the elements of psychological harassment, the employee may terminate the employment contract for just cause under these provisions on the ground of psychological harassment.
Subparagraph (d) of the article provides for termination for just cause where the conduct is engaged in by other employees. Under subparagraph (d):
“d) Where the employee is subjected to sexual harassment at the workplace by another employee or by third parties and, despite having notified the employer, the necessary measures are not taken.” Although this expressly concerns sexual harassment, the provision applies by analogy where psychological harassment is in issue.
The employee must terminate the employment contract for just cause within the periods laid down in Article 26 of the Labour Law: six days from becoming aware of the conduct and, in any event, within one year. In cases of psychological harassment, however, because the conduct is continuing, the period begins afresh with each act.
Where the psychological harassment is engaged in by other employees or by third parties, and the employer had previously taken preventive measures and, on becoming aware of the situation, acted to prevent or bring it to an end, the employee no longer has a ground for termination for just cause.
Where the employer is subjected to psychological harassment, or where one employee subjects another to it, the employer may terminate the offending employee’s contract for just cause. In parallel with the employee’s grounds for termination, Article 25/2 (b), (c) and (d) of the Labour Law provides:
“II - Circumstances contrary to the rules of morality and good faith, and similar circumstances:
b) Where the employee uses words or engages in conduct offensive to the honour and reputation of the employer or a member of the employer’s family, or makes unfounded allegations and accusations damaging to the employer’s honour and dignity.
c) Where the employee sexually harasses another employee of the employer.
d) Where the employee assaults the employer, a member of the employer’s family or another employee of the employer, comes to the workplace drunk or under the influence of drugs, or uses such substances at the workplace” the employer may exercise the right of termination for just cause in these circumstances.
An employee who has suffered loss may, alleging a breach of the duty of care arising under Article 417 of the TCO and the Occupational Health and Safety Law, claim compensation for pecuniary and non-pecuniary loss under Article 112 of the TCO. An employer who is under a duty to take measures against psychological harassment and to prevent it once it has occurred must, if they fail to do so, make good the loss arising from breach of the duty of care under their contractual liability for breach of the employment contract. Where such conduct has begun but has been prevented by the employer, the employee is entitled to claim separately, independently of any termination of the contract for just cause, for the loss suffered through the interference with their personal rights in the intervening period.
Employee’s burden of proof
In actions for compensation, the employee is obliged to prove the psychological harassment and the damage suffered.
Employer’s burden of proof
The employer, however, is obliged to prove that it has fulfilled its duty of care and that it was not at fault in the damage incurred and the unlawful conduct.
As noted above, the employer’s tortious and contractual liability concur, so that the employee may elect between them. It should not be forgotten, however, that if tortious liability is chosen the employee must also prove the employer’s fault. Moreover, as regards limitation, tortious liability is subject to a period of two years from the date of knowledge and, in any event, ten years, whereas contractual liability is subject only to a ten-year period.
Contractual liability and tortious liability
| Contractual liability | Tortious liability | |
|---|---|---|
| Foundations | TCO Art. 112 (breach of the duty of care) | Provisions on tort |
| Proof of fault | The employer is obliged to prove that it was not at fault | The employee is also obliged to prove the employer’s fault |
| Limitation | Ten years | Two years from the date of knowledge and, in any event, ten years |
Under Article 5 of the Labour Law the employee may also claim compensation of up to four months’ wages, together with the rights of which they have been deprived, on the ground that the employer has acted contrary to the duty of equal treatment. The legislature has provided this sanction for employers who breach that duty.
The right to refrain from working is set out in Article 13 of the Occupational Health and Safety Law:
“(1) Employees faced with serious and imminent danger may apply to the board — or, at workplaces where there is no board, to the employer — and request that the situation be established and that a decision be taken to take the necessary measures. The board shall meet as a matter of urgency, and the employer shall decide immediately and record the situation in a report. The decision shall be notified in writing to the employee and to the employee representative.
(2) Where the board or the employer decides in accordance with the employee’s request, the employee may refrain from working until the necessary measures have been taken. The employee’s wages for the period of refraining from work, and their other rights arising from statute and from the employment contract, are reserved.”
Occupational Health and Safety Law, Art. 13
Furthermore, where the board fails to ensure that the necessary measures are taken, the employee also has the right to terminate the employment contract for just cause under paragraph 4 of that article. The legislature has thus provided for graduated rights, culminating in termination for just cause.
Mobbing, which may be encountered at every stage of working life and in every kind of work, has a direct effect on employees and employers alike. Practices of this kind are today regarded as unremarkable and their existence is widely known. The harm they cause can be observed spreading to the national economy, to the markets and to those around the victims. In time, deterrent sanctions should be introduced by the legislature through possible amendments to the law.
Related legislation: Turkish Code of Obligations No. 6098 (mevzuat.gov.tr)
According to the definition of the Ankara 8th Labour Court cited in the article, mobbing includes all forms of conduct such as ill-treatment, threats, violence and humiliation systematically inflicted on individuals in the workplace by their superiors, colleagues at the same level or subordinates.
Makaleye göre mobbing doğrudan ilk olarak 2011/2 sayılı Genelge’de, ardından TBK m.417’de düzenlenmiştir; İş Kanunu’nda doğrudan bir düzenleme bulunmamaktadır. Mobbing, TBK, İş Kanunu ve İş Sağlığı ve Güvenliği Kanunu kapsamında eşit davranma, gözetme yükümlülüğü ve haklı fesih açısından uygulama alanı bulmaktadır.
The article lists the following elements: the conduct takes place in the workplace, is carried out systematically and persistently, is repeated frequently enough to become continuous, and results in harm to the victim's personality, professional situation or health. It also emphasises that not every act constitutes psychological harassment.
According to the article, if the pressure to which the employee is subjected amounts to psychological harassment, the employee may immediately terminate the employment contract for just cause under Article 24/II of the Labour Act (İşK). Where the harassment comes from other employees or third parties, the view that subparagraph (d) may be applied by analogy is defended.
Makalede fesih hakkının İşK m.26’da öngörülen süreler içinde kullanılması gerektiği belirtilmektedir. Psikolojik tacizde hareketin devamlılığı söz konusu olduğundan sürenin her hareketle yeniden başladığı ifade edilmektedir.
İşçi, TBK m.417 ve İSGK’dan kaynaklanan gözetim borcuna aykırılık nedeniyle TBK m.112’ye göre maddi ve manevi zararının tazminini isteyebilir. Eşit davranma borcuna aykırılıkta ise İşK m.5 uyarınca dört aya kadar ücreti tutarında tazminat ve yoksun kaldığı haklar talep edilebilir.
According to the article, the employee must prove the psychological harassment and the damage suffered, while the employer must prove that it fulfilled its duty of care and was not at fault. If tort liability is chosen, the employee must also prove the employer's fault.
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