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)