A Precedent by the Turkish Constitutional Court on Employees’ Right of Privacy and Freedom of Communication

In its recent decision concerning a case where the information which was obtained by the employer as a result of the inspection of another employee’s messages with the applicant on the mobile phone allocated for use of work has been used as the ground for the termination of the employment contract of the applicant by the employer, the Turkish Constitutional Court ( “TCC” )has decided that the termination of the employment contract of the applicant by the employer, by inspecting private correspondence of the employee by using its power of surveillance authority, violates “Privacy” and “Freedom of Communication” rights of the employee.

The applicant employee claimed that the examination of the correspondence on the other employee’s phone constitutes an unfair intervention to his private life and freedom of communication, and that the correspondence was obtained by the employer through unlawful methods.

The TCC has determined that full and clear information was not given to the employee in advance regarding the control of the communication made over the company mobile phones allocated for use of the employees and that it was also unclear whether an investigation limited to the employer’s claim that an investigation was made on the work phone to reach customer contact information has been carried out.

Furthermore, the TCC determined that messaging applications can be used for personal purposes and the inspection of another employee’s messages with the applicant on the mobile phone allocated for use of work causes a violation of the employee’s rightful expectation that their fundamental rights and freedoms will be protected in the workplace.

As a result of the evaluation of the similarities and differences between the TCC’s previous decisions adopted in 2016, 2020, 2021 and early 2022 in similar cases and this new decision, the following conclusions have been considered.

The similar point in these decisions is the requirement of full and clear information to be provided to the employees in advance by the employer regarding the control and surveillance of the communications made over the company communication instruments allocated for use of the employees. In addition, the employer must conduct the review subject to certain limits appropriate for their purpose.

Even though there is no apparent difference between the decisions in question with respect to the principles they lay down, it may be argued that the scope of the employees’ rights in this regard has been expanded by specifying that personal correspondence can be made in messaging programs.