With the decision (“Decision”) published by the Turkish Constitutional Court on 11.02.2022, it was ruled that the employer's termination of the employee's employment contract on the grounds of WhatsApp correspondence has violated the employee's "Right to Freedom of Communication” and “Respect for Private Life".

In the concrete case, the employee's employment contract was terminated with just cause, when one of the managers of the institution seized the employee’s WhatsApp correspondence on the employee's work computer while the applicant, who is a private company employee, was working at the state hospital. Afterward, in the lawsuit filed by the applicant with a request for reemployment, the court of the first instance decided to accept the case, invalidate the termination and return the application to work. Subsequently, as a result of the appeal filed, the regional court of justice definitively rejected the case, stating that the employer had exercised its right of immediate termination. Thus, the applicant made an individual application to the Turkish Constitutional Court.

The Turkish Constitutional Court considered that the applicant's correspondence with his colleagues via WhatsApp was examined and the contents were accessed by the employer. The Court considered that the application should be examined in terms of "Right to Respect for Private Life" and "Freedom of Communication".

In the first part of the decision, it was stated that the employer's authority to control the employee's communication and termination of the employment contract by the reason of this communication should be examined within the scope of the positive obligations of the state in the context of the right to respect for private life and freedom of communication. In disputes within the scope of the supervision of communication tools by the employer, it is necessary to decide by the courts of instance by considering the principle of proportionality and balancing the interests in the context of the positive obligations of the state.

In the continuation of the decision, it was stated that within the scope of the management authority of the employer, the employer could control the communication tools offered to the use of the employee for reasons such as ensuring the control of the information flow, measuring the efficiency or security concerns in order to be able to carry out their work effectively and set limitations. However, this management authority should be limited to the execution of the work in the workplace, ensuring the order and security of the workplace.

Therefore, the employer does not have unlimited and absolute surveillance and control authority over the communication tools.
Hence, when examining the concrete case, the Turkish Constitutional Court emphasizes that the following points should be taken into account:

1. It should be checked whether the employer has legitimate grounds to show that the examination of the communication tools made available to the employee is justified.
2. Supervision of communication and processing of personal data should be carried out in a transparent manner and employees should be informed in advance by the employer.
3. The intervention made by the employer in the fundamental rights and freedoms of the employee must be related to the aim to be achieved and should be suitable for realizing this aim.
4. In order for the intervention by the employer to be considered necessary, the intervention must be necessary in terms of the aim to be achieved.
5. In order for the intervention to be considered proportionate, the data to be processed or utilized as a result of the intervention must be limited to the intended purpose.
6. The conflicting interests and rights of the parties need to be balanced fairly, taking into account the impact of the communication review on the employee and the consequences for the employee.

When the concrete case is evaluated; it is understood that there is no clear notification that the communication made over the computer allocated for use in the workplace by the employer can be monitored and supervised. In addition, it is clear that the supervision of the program in question, which is known by everyone and the employer to be related to personal use in the concrete case, is contrary to the reasonable expectation of the applicant to protect the privacy of his private life and correspondence. In addition to these, the employer did not clearly state why the message contents should be examined and it has not been discussed by the courts of instance.

As a result, it has been decided that the termination of the employment contract due to these correspondences violates the right to respect for private life and the freedom of communication, by getting the WhatsApp correspondence without the consent of the employee and without informing the employee.

You may access the Decision by this link.

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Authors: Bilge Derinbay, Aysu Eren Yüce

Contact: [email protected]