Garden Leave under Turkish Labor Law

 1.         Introduction

The concept of garden leave is not a familiar concept to Turkish labor
law as the legislation does not regulate this concept explicitly. The employers
however in practice might have the need to make use of this concept for various
reasons. Below we first introduce the concept of garden leave in general and
then examine this concept under Turkish labor law.

2.         The Concept of Garden
Leave

The garden leave is a debated matter under labor law. By rule employment
agreements executed between the employer and the employee can be terminated with
a notice given to the other party. On the other hand there are certain distinct
situations where the employee spends the notice away from work, though by rule
employee is supposed to be working during notice period. So the concept of the
garden leave pertains to notice period practices.

The garden leave refers to the period during which employees spend their
notice period away from the workplace, despite the employment relationship
still being alive (i.e. there is no resignation or dismissal or mutual
separation). During that period employees are not required to be present and
working in the workplace, but still remain on the payroll. So instead of
working in an active way, the employees remain passive and only receive salary
for that period.

The concept of garden leave is developed further to the need that arises
in certain situations for keeping employees away from workplace due to a myriad
of reasons. For instance the employer resorts to garden leave when there is a
legitimate concern that the employee who has been or has given notice might
disrupt the peace in the workplace. In the same vein employer might have doubts
about receiving due performance from the employee who has been or has given
notice and therefore prefers to just keep that employee away from work stream.

Garden leave is frequently exercised as a part of internal
investigations as well. Indeed the subject of the investigation could be put on
garden leave during the course of the investigation with a view to ensure that
the investigation proceeds in an effective and undisrupted way. In such cases
the main concern is that the subject of the investigation could get in the way
of the investigators or even endeavors to destroy evidence of wrongdoing.

So in general garden leave is a precaution that is taken to eliminate
various undesired possibilities that might realize if employee is allowed in
the workplace and allowed to keep working.

3.         The Notion of Garden
Leave under Turkish Labor Law

Below we examine the notion of garden leave under Turkish labor law. We
will start with examining the notion of garden leave in terms of present
Turkish labor law legislation and then elaborate on practices that can be
adopted as alternatives to garden leave under Turkish law. Lastly, we will
explain the possible consequences of imposing garden leave under Turkish law.

3.1.      In Terms of Present
Legislation

The concept of garden leave is not regulated under Turkish Labor Law No.
4857 and under any other labor law legislation. In other words, Turkish labor
law does not grant an explicit right on the employers to exercise garden leave.
Therefore, suspending the employee by granting garden leave would mean creating
a whole new labor law practice that cannot be deduced from any labor law
regulations even by making far-fetched interpretations.

That being said, there is no explicit rule under Turkish law that
prohibits use of the notion of garden leave if both parties, i.e. the employer
and the employee, agree on this notion. This agreement can be executed as part
of the employment agreement or a separate agreement. However, for evidentiary
purposes, such agreement must be in writing; otherwise, it would be difficult
to prove existence of the agreement on garden leave in a possible dispute.

Consequently, although Turkish law does not explicitly regulate the
notion of garden leave, it does not explicitly restrict its use if both parties
agree on it.

3.2.      Practices as an
Alternative to Garden Leave under Turkish Law

As explained above, Turkish law does not explicitly restrict use of the
concept of garden leave if both parties agree on it. Therefore, it is possible
to provide a provision in the employment agreement or execute a stand-alone
agreement regarding the garden leave. In certain cases the company directives positively
regulates the concept of garden leave and this could entitle the employer to
use the concept of garden leave in certain cases.

That being said, there is an alternative practice that can be used,
instead of garden leave under Turkish law. If the concept of garden leave is
not regulated under the company directives and/or the employee's employment
agreement, but the employer still wishes to cut the employee's ties with the
company for a certain period of time, the employer could consider offering the
employee to grant paid leave during this process without deducting these "used
leave days" from the employee's annual paid leave entitlements. It must be noted
that the employee's consent to such practice is a must. Because without the
consent, it could be seen as executing "garden leave" under the guise of
"granting leave", which could, as explained below, expose the employer to
unilateral termination of the employee along with compensation claims connected
thereto.

3.3.      Consequences of Imposing
Garden Leave under Turkish Law

There might be severe consequences of imposing garden leave on an
employee despite the concept of garden leave not being regulated in the company
directives and the employment agreement under Turkish law.

Considering the Turkish labor courts' tendency to favor the employee
vis-à-vis the employer, due to Turkish labor law's motto to protect the weak, imposing
garden leave on an employee could be labeled as an unfair and unwarranted
treatment and also as violation of the employee's constitutional freedom of
work due to having no legal ground in the legislation and case law, as
explained above. This could give way to the interpretation that the employer de
facto terminated employment under the guise of garden leave.

Besides that such a practice of the employer could justify "for cause
unilateral termination" of the relevant employee due to being "scapegoated"
with no concrete proof, especially in cases where this practice is done due to
an ongoing internal investigation. This could bring a non-pecuniary
compensation claim based on the distress suffered. Therefore it is advisable
for the employers not to take the risk of facing these chain reactions.

4.         Conclusion

As explained above, although Turkish law does not explicitly regulate
the notion of garden leave, it does not explicitly restrict its use if both
parties agree on it. Moreover, the company directives may provide certain
provisions regarding the concept of garden leave. But if the company directives
and employment agreement does not regulate the concept of garden leave at all, the
employer could consider offering the employee to grant paid leave during this
process without deducting these "used leave days" from the employee's annual
paid leave entitlements, provided that the employee has consented so.
Imposition of garden leave on an employee has severe consequences under Turkish
law such as unilateral termination of the employment agreement by the employee
and claims for compensation of non-pecuniary damages, etc.

Authors: Gönenç Gürkaynak, Esq., Tolga Uluay
and A. Bahadır Erkan of ELIG Gürkaynak
Attorneys-at-Law

(First published
by Mondaq on March 6, 2019)