The decision of the Constitutional Court, which ruled that termination of an employee on the basis of social media posts violated the employee’s right to respect for private life and freedom of expression, was published in the Official Gazette on 22.11.2023.

Pursuant to the decision, employers should evaluate the termination options of their employees due to their social media posts by considering certain issues, such as:

  • how the posts impact the functioning of the work,
  • which obligations of the employment contract are being violated,
  • how the purpose of the employment contract is jeopardized,
  • whether social media posts are shared during working hours, and
  • whether social media posts are shared using means provided by the employer.

In evaluating the above, a balance must be struck between the employer’s protected interests and the employee’s rights protected by the Constitution.

The Constitutional Court emphasized the following key points in its decision:

  • Employers may impose restrictions on certain behaviors and actions within the scope of the employee’s private life, for legitimate and justifiable reasons, such as occupational health and safety or protection of the employer in criminal and legal matters. However, these powers and rights of the employer are not unlimited, and workplace rules should not compromise the essence of the employee’s fundamental rights and freedoms.
  • Terminating the employment contract solely based on personal social media activity unrelated to the job, workplace, or employer would be inconsistent with the employee’s justified expectation that his/her fundamental rights and freedoms in a democratic society should be respected at work.
  • Situations occurring outside the workplace or without work tools and have no effect on the functioning of the business and take place in the personal space, should not be considered as grounds for termination, as this disrupts the balance between the interests of the employer and the employee to the detriment of the employee, which must be protected by the state within the scope of the state’s positive obligations.
  • It is important to consider whether the applicants’ posts had negative impact on the conduct of work, occupational health and safety.
  • The courts of first instance emphasized that social media posts should be evaluated and explained with sufficient and relevant justification, taking into account the impact of the posts on the workplace and the functioning of the work, employee’s duties, record, and the public nature of the posts. In addition, it should be ensured that the termination is fair, appropriate, and proportionate to the legitimate purpose targeted by the employer.
  • In the present case the courts failed to establish the balance of interest between the applicants’ fundamental rights and freedoms and the attack on the reputation and goodwill of certain state officials which allegedly damaged the company’s rights

Moreover, there was no assertion that the posts were shared during working hours or using work tools or at the workplace and that the applicants were unable to fulfil their obligations arising from the employment contract.

  • The decision of the Regional Court of Justice did not fully determine which contractual obligation was concretely imposed and which concrete contractual obligation was breached by which behavior of the employees, and did not explain which business interests of the employer were damaged.
  • No damage could be shown to have been caused by the applicants to the employer’s personality, property and other legally protected assets, and it could not be demonstrated in what way the posts jeopardized the purpose pursued by the employment contract and hence qualified as a behavior that would undermine mutual trust.
  • Due to the above-mentioned reasons, it was decided that the right to respect for private life guaranteed under Article 20 of the Constitution was violated since it was understood that there has not been a diligent trial in which the guarantees specified in the Constitution regarding the right to respect for private life have been observed, and therefore it was ruled that the state has not fulfilled its obligations in terms of protection of constitutional guarantees.
  • Furthermore, since that the above assessments are also related to allegations of violation of freedom of expression, the Constitutional Court ruled that the freedom of expression guaranteed under Article 26 of the Constitution was also violated.

You may find the press release (in Turkish) of the Constitutional Court on the subject below:

https://www.anayasa.gov.tr/tr/haberler/bireysel-basvuru-basin-duyurulari/is-sozlesmesinin-feshi-nedeniyle-ozel-hayata-saygi-hakkinin-ve-ifade-ozgurlugunun-ihlal-edilmesi/

Batuhan Şahmay
Partner | [email protected]
Özlem Özdemir Yılmaz
Senior Associate | [email protected]
Behiç Ateş Gülenç
Associate | [email protected]