Sexual harassment, as one of the consequences of living together in a society, is a concept with legal, moral, and sociological dimensions. In general, it is nearly impossible to expect that sexual harassment, which can occur in any moment of daily life—would not also arise in workplaces, where people spend a significant portion of their time together. In the professional context, sexual harassment not only constitutes a violation of personal rights but also infringes upon the constitutional right to work. While female employees may come to mind as the primary victims of harassment, it must be emphasized that men—and, where applicable, child workers—may also be victims of sexual harassment.

The psychological and physical harm suffered by an employee exposed to sexual harassment, along with the negative impact on their professional productivity, clearly demonstrates that this issue must not be overlooked. As such, sexual harassment emerges not only as a concern under labor law but also, when it constitutes a criminal act, under criminal law—and as an infringement upon personal rights, it also falls within the scope of obligations law and civil law. Under the Turkish Code of Obligations and Civil Code, a person subjected to sexual harassment may suffer damage to both their physical integrity (life, health, etc.) and moral integrity (honor, dignity, etc.). Consequently, the victim shall be entitled to claim material and moral compensation, and this can be briefly summarized in one sentence as a fundamental legal recourse.

According to the Fourth European Working Conditions Survey conducted by Eurofound in 2005, 6% of employees in Turkey have reported being victims of sexual harassment in the workplace. As alarming as this figure is, the real prevalence is likely higher due to underreporting and the inability to recognize or detect all incidents. This underscores the need for constant awareness and action, rather than brushing the issue aside.

Although this article focuses on cases where one employee sexually harasses another, it must not be forgotten that workplace harassment may also occur from employers or their representatives, often through abuse of power and authority, not solely between employees.

The basis for the employer’s right to terminate the employment contract with just cause in such cases lies in the employer’s duty to protect their employees. This duty of care, which will be briefly addressed, forms the legal foundation for justified dismissal in incidents of workplace sexual harassment.

THE EMPLOYER’S DUTY TO PROTECT THE EMPLOYEE

In a broad sense, the employer’s duty to protect the employee constitutes the counterpart to the employee’s duty of loyalty. Fundamentally, the employer is expected to assist the employee, to prevent the employee from being harmed due to work, and to avoid undermining the employee’s interests. However, the expectations placed on the employer are not limited to these. In addition to the above—and forming the core of our subject—the employer is also expected to protect the employee’s personality, life, health, mental and physical integrity, honor and dignity, personal and professional reputation, private life, and moral values, and to ensure compliance with the principles of good faith in the workplace. The boundaries of this duty shall be determined in accordance with the principles of good faith set out in Article 2 of the Turkish Civil Code.

The protection of the employee’s personality encompasses all the above-mentioned concepts and constitutes a constitutional obligation. In addition to the Constitution, the Turkish Code of Obligations also addresses the scope of the employer’s duty to protect the employee. Although the provisions listed are not exhaustive, they serve as guiding principles for the employer and, in the context of this article, include references to the concept of sexual harassment.

The relevant provision is Article 417 of the Turkish Code of Obligations. This article sets out the employer’s obligations as follows: to protect the personality of the employee, to show respect for the employee, to establish a working environment in line with the principles of honesty, to take necessary measures to prevent employees from being subjected to psychological and sexual harassment and to prevent further harm to employees who have already been exposed to such harassment, to ensure occupational health and safety in the workplace by taking all necessary precautions and providing complete tools and equipment, and to protect the personal data of employees. The critical point for the purposes of this article is the employer’s obligation to take the necessary measures to prevent sexual harassment, and, if harassment does occur despite these measures, to prevent the affected employee from suffering further harm.

In a decision by the Court of Cassation:

“The prevention of sexual harassment in the workplace requires the creation of an environment in which the victim of harassment can resist it without being subjected to any humiliation, and can report the harasser. The perpetrator must also be aware that they will face appropriate consequences. Employers are obliged to act sensitively on this issue, to take the necessary precautions to create an environment that prevents harassment and allows the victim to file a complaint without fear, to investigate allegations seriously, and to implement appropriate sanctions.”

According to the employer’s duty to protect, the primary obligation is to organize the work environment in a way that prevents the occurrence of sexual harassment. If a complaint is made, the employer must launch an internal investigation and, if the harassment is confirmed, take appropriate action based on the severity of the incident. Article 25/2(c) of the Labor Law No. 4857 grants the employer the right to immediately terminate the employment contract for just cause in such cases, as they are considered acts contrary to morals and good faith. In fact, in a recent Court of Cassation decision, the court ruled that it was justified to terminate the contract of a quality control employee who sent messages such as “my love” and “darling” to a high school student intern:

“Although the court stated that the plaintiff’s conduct did not rise to the level of just cause for termination under Article 25/2(c) of the Labor Law No. 4857 and could only be considered a valid reason, the plaintiff’s confirmed actions toward the intern were inconsistent with principles of honesty and loyalty, and were disturbing to the recipient; therefore, the employer’s termination should be deemed justified.”

The fact that violations of moral and good faith principles were not included in the termination ban imposed during the COVID-19 pandemic further illustrates the importance placed by Turkish law on adherence to such principles.

The employer must initially treat every complaint as an allegation and should not make any decisions without a proper investigation. The employer is not expected to act as a police officer, but is expected to collect sufficient evidence to determine whether sexual harassment has in fact occurred. While the primary objective is to protect the victim, due to the sensitivity of such incidents, if the accused party is later proven innocent, there is a risk that they could be socially excluded by their peers. Therefore, the employer’s duty to protect continues to apply equally to both the party alleging sexual harassment and the accused party until the harassment is substantiated.

Before moving on to the definition of sexual harassment, I believe it is important to first define harassment in general. Harassment refers to any verbal, physical, or visual behavior that includes humiliation, attack, or insult directed at a person’s characteristics (such as ethnicity, gender, religion, race, etc.).

Although there is no explicit definition of sexual harassment in Turkish legislation, it is an undeniable reality that women are most frequently targeted. Therefore, when defining sexual harassment, reference must be made to the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (the Istanbul Convention). The Convention defines sexual harassment as:

“Any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.”

When the general definition of harassment and the definition of sexual harassment under the Istanbul Convention are considered together, the following definition of sexual harassment may be established:

Definition of Sexual Harassment

Sexual harassment is defined as being subjected to sexually explicit proposals, jokes, insults, or verbal, visual, or physical behavior of a sexual nature, without one’s consent.

According to the reasoning behind Article 105 of the Turkish Penal Code, which defines the offense of sexual harassment, such acts are considered sexual behaviors that do not amount to a violation of the victim’s physical integrity. In the context of the workplace, sexual harassment should be understood as a situation in which an individual is exposed to unwanted verbal or physical sexual behavior in the working environment. In fact, the Turkish Penal Code considers it an aggravated form of the offense when sexual harassment is committed through the abuse of influence arising from a hierarchical or service relationship, or by taking advantage of the ease provided by working in the same workplace.

The Court of Cassation states that even if the behavior is not explicitly classified as sexual harassment, inappropriate conduct by the employee—such as repeatedly calling a colleague, inviting them to dinner, or insisting on unwanted communication—may constitute just cause for termination. Furthermore, it is not necessary for the harassment to be physical; verbal harassment, including sexually suggestive remarks, also falls within the scope of sexual harassment.

Indeed, the Court of Cassation [3] has ruled that the first instance court’s assessment—that messages without overtly sexual language do not rise to the level of sexual harassment—was incorrect. The Court emphasized that the existence of harassment does not require explicit sexual expressions.

“…The file contains message records showing that the plaintiff invited his female colleague to his house, disturbed her, and harassed her, and that there were also reports of similar behavior toward other female staff. It has been determined that for the act of harassment to be deemed to have occurred, it is not necessary for the messages to contain explicit sexual expressions; therefore, the plaintiff’s actions are considered to be of a nature constituting just cause for termination…”

Sexual Harassment in the Workplace

Sexual harassment in the workplace is primarily a situation that disrupts the working environment, creates unrest, and negatively affects the mental and physical health, work performance, and motivation of the victim. Such a circumstance has significant consequences both for the employee and the employer. As previously defined, workplace sexual harassment refers to “any unwanted verbal, non-verbal, or physical conduct of a sexual nature that is aimed at or results in violating human dignity and, in particular, creates an intimidating, hostile, humiliating, or offensive environment within the workplace.” According to this definition, sexual harassment can be considered both a violation of personal rights and a form of gender discrimination.

Engaging in sexually explicit conversations in the workplace, displaying obscene photographs, and turning such behavior into a part of the workplace culture will, especially for female employees, create an unsafe and uncomfortable work environment. It is evident that employees—particularly women—who are forced to work under such conditions may be subjected to discrimination based on gender.

According to Article 25/2(c) of the Labor Law, it is not a requirement that the sexual harassment occur within the physical workplace for it to constitute grounds for termination. Harassment that occurs outside of working hours and off the premises may also justify immediate dismissal. Indeed, in one decision of the Court of Cassation [4], it was held that:

“An employee repeatedly calling a female coworker using the company phone, especially during nighttime hours, and making disturbing remarks, constituted grounds for just cause termination.”

In light of this precedent, the concepts of “working hours” and “workplace” should be interpreted broadly, and the employer may be held liable for incidents occurring outside the workplace. Within this scope, the employer’s duty to protect the employee also extends beyond working hours. However, not every instance of sexual harassment occurring outside working hours will automatically result in employer liability; in order for such liability to arise, the behavior in question must be frequent and repetitive.

Sexual Harassment by an Employee Toward Another Employee

As previously mentioned, within the scope of the employer’s duty to protect and safeguard employees, the employer is obligated to maintain a morally appropriate working environment and to take the necessary precautions to prevent employees from being subjected to sexual harassment.

Under the Turkish Labor Law No. 4857, cases where one employee sexually harasses another are regulated in a manner that provides grounds for immediate termination with just cause from both the employee’s and the employer’s perspective. However, in line with the focus of this article, we will examine only the employer’s right to terminate based on subparagraph 25/2(c).

If an employee is subjected to sexual harassment by another employee, the employer has the right to immediately terminate the employment contract of the harassing employee for just cause, regardless of whether the contract is for a definite or indefinite term. Furthermore, the Court of Cassation has held that even in cases where the employee resigns before the employer initiates termination, if it is understood that the resignation was prompted by the revelation of the harassment incident involving a female employee, then the harassment itself still constitutes valid grounds for just cause termination—even if the resignation is not formally accepted by the employer. [5]

“It is understood that the plaintiff’s reason for resignation stemmed from the disclosure of a harassment incident directed at a female employee in the workplace. The plaintiff resigned before being dismissed by the employer. Even if the resignation is not accepted, the harassment incident constitutes just cause. Therefore, the plaintiff’s claims for severance and notice compensation should have been rejected; accepting them was erroneous.”

From the employer’s standpoint, such incidents—causing disruption in the workplace—render it unacceptable, under the principle of good faith, to expect the employment relationship with the harassing employee to continue. In such cases, it is irrelevant whether the employee is under employment protection (i.e., job security) provisions or not.

Termination Statement, Form, and Timing

A termination for just cause is a unilateral declaration of intent that must be communicated to the other party. This declaration becomes legally effective upon its receipt by the other party, and thus does not require their acceptance.

According to Article 26(1) of the Turkish Labor Law, in cases where the employment contract is terminated due to acts contrary to morality and good faith—such as one employee sexually harassing another—the employer must exercise this right within six working days of learning about the incident and no later than one year from the date the incident occurred. These are statutory limitation periods. Therefore, if the termination is carried out after these time limits, it will be considered unjustified. In cases where the perpetrator of the harassment is initially unknown, the statutory period begins not from the date of the incident but from the date the perpetrator is identified. Moreover, if the sexual harassment is of a continuous nature, the limitation period begins from the end date of the most recent incident.

The Court of Cassation has ruled that in cases where the act justifying termination continues over time, the limitation period does not begin to run, and the right of termination may be exercised at any time during the ongoing misconduct:

“In the case of continuous just cause, the statutory limitation period does not apply.” [6]

According to the Court of Cassation, if the statutory period has elapsed but the employee’s behavior has caused significant disruption in the workplace and constitutes a valid reason for termination, such termination should not be considered unjustified, but rather as a valid termination:

“The statutory limitation period under Article 26 applies to terminations based on Article 24(2) for the employee and Article 25(2) for the employer. It is not applicable to terminations based on valid reasons. In such cases, the employment contract may be terminated within a ‘reasonable time,’ not necessarily within the statutory limitation period.” [7]

As previously stated, when an incident of sexual harassment is reported to the employer, the duty to protect applies equally to both parties involved until the harassment is definitively established. Therefore, instead of reaching an immediate conclusion, the employer should conduct an internal investigation. In such cases, as emphasized in multiple rulings by the Court of Cassation, the statutory limitation period for termination begins not from the date the incident occurred but from the date the investigation results are disclosed to the person or body authorized to terminate. If the matter is referred to a disciplinary board, the period starts from the date the board’s decision is communicated. [8]

“If the employer is a legal entity, the six working day limitation period begins on the date the person or body authorized to terminate becomes aware of the event. A labor inspector’s investigation or referral to a disciplinary board does not trigger the limitation period. The limitation period starts from the day the incident is brought to the attention of the person or body authorized to terminate.”

By law, an employee who is subjected to sexual harassment by another employee must report the incident to the employer. However, if the employer is already aware of—or reasonably should have been aware of—the incident, the employee is not required to report it. [9]

“In cases where an employee is harassed by another employee or by third parties, the employee must report the situation to the employer and request that necessary precautions be taken. If the employer already knows or should reasonably be expected to know of the harassment, there is no requirement for the employee to report it.”

Although employees with indefinite-term employment contracts who are protected under job security provisions may only be dismissed based on valid reasons and in accordance with the procedures outlined in Article 19 of the Labor Law—such as receiving a written notice stating the reason for termination and being given the opportunity to present a defense—these procedural requirements do not apply to terminations made for just cause under Article 25.

In practice, and as consistently recognized in the case law of the Court of Cassation, written notification and collection of a defense are not mandatory for terminations based on just cause, even for employees under job security protection. A written termination notice serves as evidence but is not a condition for the validity of the termination. [10]

“The employer’s termination on 03.03.2015 falls under subparagraph 25/II-h of the Labor Law No. 4857 and constitutes a just cause. There is no legal obligation for the employer to provide the employee with a written notice of termination in cases of just cause. Even in situations where the employer believes the termination is justified but it is ultimately considered a valid rather than a just termination, the absence of a written notice does not invalidate the termination.”

According to subparagraph 25/2(c) of the Labor Law, which regulates terminations based on violations of morality and good faith, an employee who is dismissed for sexually harassing a colleague is not entitled to severance pay. [11]

“It is clear that the plaintiff sexually harassed a female employee at the workplace. As the termination of the employment contract was based on just cause, the claims for severance and notice pay should have been rejected. The court’s acceptance of these claims based on an improper legal reasoning was incorrect.”

In another ruling, the Court of Cassation found: [12]

“Considering the sequence of events, witness testimony, and the fact that the complainant had no reason to falsely accuse the plaintiff, it has been established that the plaintiff sexually harassed a female employee. The conduct constitutes just cause under Article 25/II-e of the Labor Law, and the employer exercised the termination right within the statutory time limit. Therefore, the claims for severance and notice pay should have been rejected.”

And in yet another similar decision: [13]

“According to the case file, the cleaning staff member submitted a complaint letter on 26.02.2014, and the plaintiff acknowledged the allegations in his written statement dated 27.02.2014. As the plaintiff admitted to the acts that form the basis of the termination, the sexual harassment is established based on the case file. Therefore, the employer’s termination was based on just cause, and the claims for severance and notice pay should have been dismissed.”

Proof of Sexual Harassment

In cases where the employer terminates an employee’s contract on the grounds of sexual harassment directed toward another employee, the burden of proof lies with the party claiming that the employment relationship has become untenable due to the harassment. In such terminations based on just cause, sexual harassment may be proven through any type of evidence.

However, since sexual harassment often occurs behind closed doors, and victims may remain silent out of shame or fear of losing their job, proving such incidents can be particularly difficult.

To overcome these evidentiary challenges, the Court of Cassation has acknowledged the existence of certain presumptions (de facto inferences) in practice.

One such presumption, especially recognized in criminal law cases involving sexual harassment, is that “a woman would not make baseless claims that would jeopardize her honor or reputation.” According to this presumption, if a person has no motive to falsely accuse someone, it is unlikely that they would risk their personal dignity by fabricating such an allegation. In one criminal case, the Court of Cassation overturned an acquittal that was based on lack of evidence, finding that the complainant had no reason to falsely accuse her teacher by compromising her own dignity:

“…The complainant’s consistent and sincere statements throughout the proceedings, the corroborating witness testimony, and the lack of any reason for the complainant to falsely accuse her former teacher—by putting her own reputation at stake—make it clear that the accused invited the complainant to his home, told her ‘You’re very beautiful, I want to kiss you,’ and repeated this insistently despite her refusal. Therefore, the decision to acquit due to lack of evidence must be overturned…” [14]

Similarly, in another decision, the Court stated that even in the absence of physical evidence, the credible and consistent account of the complainant—who had no apparent reason to lie—was sufficient to prove the sexual harassment: [15]

“…Given the absence of any proven motive for the complainant to make false accusations, and her consistent and credible statements throughout the proceedings—corroborated by witness Ahmet Şen—it is concluded that the accused committed the act of sexual harassment as charged…”

In another similar ruling, the Court of Cassation again accepted the complainant’s consistent statements, noting the absence of any serious motive to fabricate the claim. However, the Court also cautioned that such presumptions should not be treated as absolute. There is always a risk of misuse, and therefore, not every allegation should be presumed to be true without scrutiny. Each case must be evaluated individually, taking into account the specific circumstances and examining whether false accusations may be involved.

Another de facto presumption recognized by the Court in proving sexual harassment is the “natural course of life” standard based on common human experience. In one ruling, a foreman’s employment was terminated after three female employees at the same workplace accused him of sexual misconduct. The Court held the termination to be justified, stating that it would not be consistent with the ordinary course of life for three different women to fabricate such detailed and consistent accounts of harassment. In another case with similar facts, a female employee wrote a detailed letter to her employer describing the sexual harassment she endured, and the Court deemed the termination justifiable, citing again that such detailed accounts are consistent with the natural course of life.

These decisions demonstrate that the Court of Cassation evaluates the parties’ conduct and statements within the framework of life experience and plausibility when determining whether sexual harassment occurred. However, even this presumption should not be treated as absolute, and each case must be assessed on its own facts and merits.

In addition to these presumptions, sexual harassment can also be proven by other types of evidence. Such evidence may include:

• Witness testimony (if someone directly witnessed the event),
• Mobile phone messages,
• CCTV footage,
• Emails containing inappropriate sexual content.

Although hearsay witness statements are generally not given much weight in Turkish law, given the nature of sexual harassment, it is often the case that no one else directly witnessed the incident. In such cases, the testimony of a colleague or a doctor who was the first person to hear about the event from the victim immediately afterward may serve as supporting evidence. Indeed, in one ruling, the Court stated the following: [16]

“…When the evidence submitted by the parties is considered together, the testimony of witness K3—who was not a direct witness to the event but gave consistent statements during both the internal investigation and in court—corroborates the victim’s account. Taking into account the sequence of events, it is concluded that the employee’s conduct, which formed the basis for the termination, was proven by concrete evidence contained in the case file…”

Finally, if the sexual harassment incident is also the subject of a criminal case, civil courts are generally not bound by the criminal court’s decision due to the principle of judicial independence. However, if the criminal court has established the material facts and confirmed the existence of the unlawful conduct, its decision serves as conclusive evidence in civil proceedings.

According to established jurisprudence and scholarly consensus, a criminal court’s final ruling on the existence or absence of material facts is binding on civil courts. Thus, when a criminal court has definitively ruled on whether a specific event occurred, that issue cannot be re-litigated in civil court. In labor law, if the conduct that formed the basis for termination is confirmed by a criminal court, it is accepted as conclusive proof that the termination was based on just cause.