The Labour Act Number 4857 (the “Act”) provides that female employees may use maternity leave for a period of sixteen weeks and that the period of leave may change according to their health status.
The issue is regulated by Article 74 of the Act: “ In principle female employees must not be engaged in work for a total period of sixteen weeks, eight weeks before confinement and eight weeks after confinement. In case of multiple pregnancy, an extra two-week period shall be added to the eight weeks before confinement during which female employees must not work. However, a female employee whose health condition is suitable as approved by a physician’s certificate may work at the establishment if she so wishes up until the three weeks before delivery. In this case the time during which she has worked shall be added to the time period allowed to her after confinement. The time periods mentioned above may be increased before and after confinement if deemed necessary in view of the female employee’s health and the nature of her work. The increased time increments shall be indicated in the physician’s report. The female employee shall be granted leave with pay for periodic examinations during her pregnancy. If deemed necessary in the physician’s report, the pregnant employee may be assigned to lighter duties. In this case no reduction shall be made in her wage. If the female employee so wishes, she shall be granted an unpaid leave of up to six months after the expiry of the sixteen weeks, or in the case multiple pregnancy, after the expiry of the eighteen weeks indicated above. This period shall not be considered in determining the employee’s one year of service for entitlement to annual leave with pay. Female employees shall be allowed a total of one and a half hour nursing leave in order to enable them to feed their children below the age of one. The employee shall decide herself at what times and in how many instalments she will use this leave. The length of the nursing leave shall be treated as part of the daily working time.”
Maternity leave, which is regulated by law, causes some practical issues in employment law. These problems mainly relate to whether the period of maternity leave is included in the calculation of seniority and whether the labour contract is suspended during the period of maternity leave.:
1)MAY MATERNITY LEAVE BE CONSIDERED AS ONE OF THE REASONS FOR SUSPENSION OF THE LABOUR CONTRACT?
The Act provides that in some cases that the labour contract will be suspended, such as the impossibility or temporary failure of performing the employee’s work of the employee. Such a failure to perform must not include liability, and the time of the execution of the work must not be essential. In maternity leave, the employee is unable to perform her work due to health reasons, and in this case there is an objective impossibility of performance because she does not have any liability. In addition, this situation is temporary, and if the employment contract does not specify an essential time during which the work must be done, other conditions for the suspension of the contract shall also be provided. In such cases the labour contract is suspended, as stated by the decisions of the High Court of Appeal.[1]
2)HOW DOES THE TERM OF MATERNITY LEAVE AFFECT THE EMPLOYEE’S SENIORITY RIGHTS?
Although there is no clear regulation in the Law about whether the period of maternity leave should be counted as the seniority of the employee, the Law clearly contemplates that it should be considered as working in terms of eligibility for annual leave, which is a right dependent on seniority. There are interpretations, in the doctrine involving maternity leave, that this provision should also be considered to apply to the calculation of severance and notice pay, which is another right that depends on seniority[2]. For this reason, the period of maternity leave must be counted in calculating the seniority of the employee. Failure to include maternity leave for purposes of seniority, which is a right arising from the law, will mean the aggrievement of the pregnant employee.[3]
ANNUAL LEAVE:
First, it should be stated that the period of maternity leave should be taken into account in calculating of the annual leave period. This situation is regulated in Article 55 of the Act: “In determining the right to annual leave with pay the periods shown below shall be treated as having been worked; … b) Days on which the female employee is not permitted to work before and after her confinement, in accordance with Article 74… “
As it is clearly understood from the quoted portions of Article 55, above, the period of maternity leave shall be considered as working for purposes of calculating the employee’s annual leave period. This is also affirmed by High Court of Appeal’s decisions, such as the following[4]:
In accordance with the verdict of the 21th Chamber of the High Court of Appeal dated 16/11/2009, numbered 2009/10683 E., 2009/14839 K.: “Article 74 of the numbered 4857 Labour Act as set out in the article, it is right that the period of 73 days between 18.10.2006-31.12.2006 which is the legal maternity leave of the plaintiff is considered as the working period and added to the number of days in 2006. ‘’
SEVERANCE PAY
Although there is no clear regulation in the Labor Act that the term of maternity leave is to be considered as a working period for severance pay purposes, informed legal commentary and by the decisions of the High Court of Appeal are clear that the period shall be considered as a working period in the calculation of the severance pay, which is a right related to the employee's seniority. For example:
In accordance with the verdict of the 22th Chamber of the High Court of Appeal dated 15/12/2016, numbered 2015/14166 E., 2016/27808 K.: “The period in which the plaintiff is reported in 2013 should be considered as working in terms of the period of service to be based on severance pay and annual paid leave receivables.”
SEVERANCE PAY AND TERMINATION NOTICE
The seniority of the employee is also important in the calculation of the notice period and termination compensation. In Sub article 2 of Article 25 of the Act there is an implied regulation that this period should be counted as seniority: “If the Health Committee has determined that the suffering is incurable and incompatible with the performance of the employee’s duties. In cases of illness or accident which are not attributable to the employee’s fault and which are due to reasons outside those set forth in (a) above and in cases of pregnancy or confinement, the employer is entitled to terminate the contract if recovery from the illness or injury continues for more than six weeks beyond the notice periods set forth in article 17. In cases of pregnancy or confinement, the period mentioned above shall begin at the end of the period stipulated in Article 74. No wages are to be paid for the period during which the employee fails to report to work due to the suspension of his (her) contract.” "
It is understood that the period of absenteeism due to birth or pregnancy should be taken into account of the employer's right of termination without notice. It is also settled by the High Court of Appeal decisions such as the following:
In accordance with the verdict of the 9th Chamber of the High Court of Appeal dated 17/09/2007, numbered 2007/29103 E., 2007/26743 K.: “Article 25/I-a of 4857 numbered Labour Act "... “The right of the employer to terminate the labour contract without notice for the employer in cases such as illness, accident, birth and pregnancy; according to the period of work of the employee at the workplace of specified circumstances it is arise after six weeks exceeding the notice periods in the Article 17. In the case of birth and pregnancy, this period begins at the end of the period in Article 74..."in accordance with the rule, the period of absence based on birth or pregnancy must be taken into account in the exercise of the employer's right of termination without notice. It is a contradiction that the period considered in the exercise of the right of termination without notice is not taken into account in the notice termination.”
As a result, under the Labour Act, the use of maternity leave by a female employee is one of the cases that suspends the labour contract. Although not all suspensions are counted as seniority, it has been accepted that the suspensions arising from maternity leave should be counted as seniority. Furthermore, it has been agreed both by the High Court of Appeal decisions and the body of legal opinion that she would receive annual leave, and that the period of maternity leave should be considered as worked time for purposes of severance pay and termination notice compensation.
[1] 7th Chamber of the High Court of Appeal, E.2015/28095, K. 2015/15063, dated 15/09/2015 10th Chamber of the High Court of Appeal, E. 2011/4858, K. 2013/12512, dated 05/06/2013 [2] Kar Bektaş / Göktaş Seracettin,” excuse permits of employees arising from the law in Turkish Labour Law", Journal of Registry Labour Law, June 2007, p.34. [3] Mollamahmutoğlu, p.458.
[4] 9th Chamber of the High Court of Appeal, E. 2017/8469, K. 2018/14042, 27/06/2018 T.
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