CMS Expert Guide on sexual harassment in the workplace

Turkish Labour Law ("the Law") obliges employers to protect their employees as part of their duty of care, therefore this also includes protection against harassment. 

Further, the Law deems sexual harassment in the workplace as a reason for immediate termination of employment. Therefore, if an employee who has experienced  harassment at  work and has previously reported the harassment to the employer, and the employer has failed to take the necessary precautions against the harassment, the harassed employee would be able to resign with immediate effect and seek certain statutory payments.  

The Law and the related protection has been in place since 2003.

In addition, the Turkish Code of Obligations also requires employers to establish order in the workplace ensuring that the personal rights of employees are protected. However, the actual implications of this obligation, implemented in 2011, have not been well defined by court decisions  and therefore remain relatively theoretical.  

There is legal regulation in Croatia, which defines and prohibits sexual harassment in the workplace. The matter is regulated by three main acts.

  • The Anti-Discrimination Act from 2008 (amended in 2012) defines sexual harassment as “every unwanted verbal, non-verbal or physical conduct of a sexual nature, which has as its intention or represents a violation of a persons’ dignity, especially if it creates an intimidating, hostile, derogatory, demeaning or offensive environment”.
  • The Gender Equality Act from 2008 (amended multiple times, last time in 2017) also contains the definition quoted above and further prohibits any type of gender-related discrimination in the workplace.
  • The Labour Act from 2014 (amended in 2017) prescribes the implementation of protective measures and relevant procedures against discrimination and sexual harassment in the workplace.

Besides the legislation mentioned above, it is common for  collective bargaining agreements to tackle the matter; however, it is usually just a general prohibition of (sexual) harassment and reference to the legislation referred to above, i.e. it is rarely seen that collective bargaining agreements contain any additional protection or measures that are prescribed by the law.

2. Are employers in this jurisdiction required to take pro-active action to prevent sexual harassment in the workplace?

As mentioned above, employers are required to take pro-active action to prevent sexual harassment in the workplace as part of their duty of care to their employees. The obligations under the Code of Obligations explained above may also be considered as prompting employers to take action. However, in practice, Turkish courts would review whether an employer has taken the necessary precautions against harassment once it has been reported by an employee (as opposed to whether the employer took precautions even before the harassment took place).

Yes, employers are required to ensure a safe work environment, which includes the protection of the employees’ dignity during work from any acts by their managers, colleagues and persons with whom the employee comes into regular contact, which could be deemed as contrary to the applicable legislation and would constitute unwanted conduct towards the employee (including sexual harassment).

In addition, an employer with 20 or more employees is obliged to appoint a dignity officer, responsible for handling all types of complaints from employees regarding violations of their dignity.

3. Has the #MeToo movement had a noticeable impact on the number of harassment claims against your employer clients?

No.

No, there has been no significant impact on the number of harassment claims against our employer clients as a result of the #MeToo movement.

In line with the legal remedies mentioned above, the harassed employee would be entitled to lawfully terminate their  employment contract and claim all statutory benefits (among others severance pay, unused holiday pay, pay for any overtime work performed, other outstanding amounts such as bonuses) if the employer has failed to take precautions following the occurrence of a case of harassment.  

Where the employer has failed to prevent harassment and has acted negligently in this respect, the employee may be able to claim non-material damages as well based on the failure of the employer to fulfil its duty of care

In organisations, which employ 20 or more employees, an internal reporting system must be established, and a dignity officer duly appointed. Complaints can be made (and resolved) internally by the dignity officer.

If such an option is unavailable or if the issue was not satisfactorily resolved within a set timeframe, the employee can seek protection before the courts. In certain cases, the employee can stop further work with the employer, until adequate protection is granted, either by the employer or the courts.

In court proceedings, the burden of proof lies on the employer, i.e. the employer must prove that there was no conduct constituting sexual harassment against the employee.

The employee can make a request to the court: (i) to make a finding that the conduct amounted to sexual harassment ; (ii) to prohibit all activities which constitute harassment, i.e. to resolve the harassment case and its consequences; (iii) to award damages incurred by the violation of the employees’ rights in accordance with the applicable civil law; (iv) to publicise the court decision which made a finding of harassment.

The employee can also make a request for payment of all due but unpaid salary (together with statutory interest) if he/she has stopped working during the court proceedings. Additionally, if a finding of sexual harassment is made, the employer will generally be obliged to pay all court fees incurred as part of the court proceedings.

5. On a traffic light red/amber/green scale, how high a priority is tackling sexual harassment for clients in this jurisdiction?

For most of our clients, this would be considered a high priority matter, so a red light, assuming that it is intended to show the highest priority.

We would mark this point amber on the traffic light scale. Our clients request advice and assistance to ensure they are providing an optimal working environment for their employees, which includes implementing protective measures against sexual harassment, as well as against discrimination generally (through appointing dignity officers, by including specific provisions in employment contracts and by-laws, etc.). Therefore, we would say the matter is not marginalised, i.e. employers are aware of their obligations and are mostly willing to comply with them. However, the matter is not very “hot” (especially media-wise), as it is in some other countries, and we are of the impression that employees still have certain reservations when it comes to fully exercising their rights.

6. Any other relevant information on workplace harassment?

The Law is the primary source regarding the workplace-related regulations. Further, as mentioned above, the Turkish Code of Obligations also imposes certain obligations on the employer although the actual implications of these remain unclear. 

As for the criminal law aspect of this behaviour, this is regulated under the Turkish Criminal Code. It should also be noted that the criminal law aspect of harassment would not be binding on labour courts which means that even if a suspect is acquitted of criminal proceedings related to a case of sexual harassment, he/she may continue to face labour law sanctions (i.e. termination of employment).

In addition to internal reporting systems (in employers with 20 or more employees), complaints can be filed with the Gender Equality Ombudsman, who is further authorised to forward the complaint to competent authorities (if applicable) or can recommend other measures to mitigate any unwanted behaviour, if deemed necessary.

7. Are you aware of any sectors which have been particularly affected by, or concerned with, harassment? For example, where reports of complaints are high, or the media have exposed an issue, or regulators are taking action? 

No. 

While there are no official statistics on the occurrence of harassment cases in specific sectors / areas, the media reports largely focus on harassment cases in the public sector and less so in privately owned companies.

The Gender Equality Ombudsman highlights the education sector, the police and local and regional government bodies as especially problematic.