The Recent Constitutional Court Decision Regarding an Employer’s Right to Supervise and Audit an Employee’s Communication
Introduction
Today, in many employment contracts, the use of tools such as computers, corporate e-mail accounts, and telephones allocated by the employer is limited and the employer’s right to control them is regulated. The employer bases such a supervise and audit right on the management right regulated under Article 399 of Turkish Code of Obligations No. 6098. The right of management entitles the employer to make general regulations regarding the conduct of the work and the behavior of the employees at the workplace and give them special instructions, provided that they are not contrary to the law, the employment contract, and, if any, the collective bargaining agreement.[1] However, the employer’s management right is not unlimited. The employee’s fundamental rights and freedoms constitute the greatest limit to the management right. In many of its recent decisions, the Constitutional Court states that the employer’s right to audit the employee’s communication is limited by the right to privacy and freedom of communication. In this article, the latest decision of the Constitutional Court numbered 2019/25604 and dated 21.09.2022 (“Decision”),[2] published in the Official Gazette dated 15.11.2022 and numbered 32014, is discussed.
Matter in Dispute
The application to the Constitutional Court was made by a private company employee whose employment contract was terminated due to the contents of the messages obtained as a result of the examination of the mobile phone allocated to the employer’s colleague.
Decisions of the Court of First Instance and the Regional Court of Appeal
In the lawsuit filed with a request for re-employment, the applicant stated that the employment contract was terminated unjustly, a copy of the messages underlying the termination was not included in the termination notice and that the messages are a figment of the imagination. He also contended that the phone lines provided by the company were also used in the employees’ private lives and that these correspondences should be protected as personal data. In response, the employer argued that the mobile phone was examined to reach customers’ contact information. The employer claimed that the correspondence contained offensive statements and insults, and that the employees had failed to fulfill their duties and responsibilities.
The court of first instance decided to dismiss the case on the grounds that the correspondence between the applicant and his colleague could constitute a just cause for termination, and that it was obtained lawfully since the mobile phone was provided by the employer.
The applicant appealed the decision of the court of first instance. The regional court of appeal stated that the correspondence could disrupt the peace between the employer and the employees and affect the employment relationship negatively, and that there was no error in the dismissal of the file by the court of first instance. In response to the allegation that personal data was violated, the regional court of appeal emphasized that the audited mobile phone belonged to the employer and it was underlined in the “Communication Tools Policy” issued by the employer that any allocated communication tools should be used only for official duties. Thus, the regional court of appeal ordered a peremptory nonsuit, holding that the fundamental rights and freedoms of the applicant were not violated and the correspondence was not obtained illegally. However, the court stated that the employment contract should be terminated due to the existence of a valid cause and not a just cause.
The Decision of the Constitutional Court
The Constitutional Court considered the employer’s right to supervise and audit the employee’s communication within the framework of the positive obligation of the state in the context of the right to privacy and freedom of communication. The court emphasized that the positive obligations require a balance between the employer’s interests and the employee’s fundamental rights and freedoms, a fair balance of conflicting interests, and an assessment of whether the interference with fundamental rights is based on a legitimate purpose and is proportional.
As explained in the Decision, the relationship between the employer and the employee involves certain rights and obligations for both parties and is shaped by the employment contract, which is itself based on a relationship of trust. In the reasoning of the Decision, the Court stated that employment law has a dynamic nature and that employment relations contain some specific legal rules that are different from general rules. Specifically, the Constitutional Court reveals that the employer can, as a rule, supervise and audit within the scope of their management right, the communication tools made available to the employee, and may impose restrictions concerning the use of those communication tools. However, these rights must be used for justifiable and legitimate reasons, such as concerns about the order of the workplace, controlling the flow of information, and measuring productivity and security. The Decision also underlines that the employer’s authority and rights are not unlimited, that the fundamental rights and freedoms of the employee are also protected at the workplace, and that restrictive and obligatory workplace rules should not harm the essence of the fundamental rights and freedoms of the employees.
In the case in question, the Constitutional Court limited the management right of the employer based on the rights to privacy and freedom of communication. Article 20 of the Constitution counts the right to privacy and family and the right to protection of personal data as fundamental rights. Freedom of communication, which is stipulated in Article 22 of the Constitution, refers to the ability to freely determine the content and addressee of the communication.[3] In this context, the established view of the Constitutional Court is that the employer does not have the absolute right to supervise and audit the communication tools allocated to the use of the employee based on the right of ownership, and such an acceptance does not comply with the legitimate expectation of the employee that his fundamental rights and freedoms in a democratic society should also be respected at the workplace.
Principles
To protect this expectation of the employees, the Constitutional Court revealed the principles to be considered during the audit of an employee’s communication. It is possible to summarize these principles, which are also important for the protection of the personal data of employees, as follows:
- The employer must have legitimate justifications during the audit of the employee’s communications tools. Whether the employer acts on legitimate justifications is evaluated by considering the work and workplace characteristics. Within the scope of the audit, a distinction should be made between the examination of the communication flow and the communication contents, and the examination of the communication contents should be based on more serious grounds.
- Under the transparency principle of the law on the protection of personal data, the employee should be informed about the audit in advance. This notification, which is not subject to any form requirement, should contain information on the legal basis and purposes of the audit of the communication and the processing of personal data, the scope, the period of storage of the data, the rights of the data subject, the consequences of the audit and processing, and the possible beneficiaries of the data. In this context, the limitations stipulated by the employer regarding the use of communication tools should also be communicated to the employee.
- The interference with fundamental rights and freedoms within the scope of the audit should be related to the purpose to be achieved and should be suitable for realizing this purpose. The obtained data should be used in line with the intended purpose.
- It should not be possible to achieve the intended purpose with less interference. In other words, the interference must be necessary for the purpose. Whether the employer has the opportunity to achieve the goal they want to achieve without surveilling the communication tools should be examined separately in each concrete case.
- The data obtained by auditing the communication should be limited to the intended purpose.
- The interests and rights of the employee whose communication is being surveilled and the employer should be fairly balanced.
Evaluation of the Matter in Dispute
As a result of the application of these principles to the matter in dispute, the Court decided that the applicant's right to respect for private life and freedom of communication were violated, due to the fact that the guarantees discussed above were not taken into consideration and a careful trial was not carried out by the Court of First Instance and the Regional Court of Justice. The Constitutional Court identified the following violations in its assessment:
- During the trial, there was no discussion of whether the “Communications Tools Policy,” which is the basis of the audit, regulates the authority to supervise and audit communication tools. Nor was there any discussion of the limits of their use of these tools, the sanctions to be imposed in case of exceeding these limits, and whether the policy was communicated to the employees in the context of the obligation to inform them.
- It was not established that the obligation to inform the applicant regarding the communication tools delivered by the employer had been fulfilled. It was not clear whether the examination was carried out in accordance with its purpose and in a limited way. It was determined that the employer examined to determine customer contact information, but the data obtained was used as just reason for the termination of the employment contract.
- Monitoring of messaging programs and mobile phones that can also be used personally is contrary to the applicant's reasonable expectation of respect to privacy and freedom of communication. The Court of First Instance did not evaluate whether it was necessary to take the contents of the messages as a basis for termination or the effect of doing so on the applicant's private life and communication.
Conclusion
Within the scope of the management right, the employer can make general regulations regarding the conduct of the work and the behavior of the employees at the workplace and give them specific instructions. In this respect, they may also create certain restrictions and set rules regarding the use of communication tools allocated to his employees. However, it is beyond doubt that this authority of the employer is not unlimited. As frequently emphasized by the Constitutional Court, the fundamental rights and freedoms of the employee should be protected within the workplace, and restrictive and mandatory workplace rules should not harm the essence of their fundamental rights. From this Decision, as well as from other recent decisions of the Constitutional Court on similar issues, employers should realize that they may only apply supervision and surveillance practices in line with legitimate and justified reasons. In addition, following the principle of transparency, they should inform employees about both the use of communication tools and the scope of their supervision and audit authority, and they should not limit or interfere with their rights in a way that exceeds their purpose. In summary, the principles listed in the Decision’s justification guide employers in using the right to supervise and audit communication tools in accordance with the law.
- Süzek, Sarper: İş Hukuku, İstanbul 2019, p. 78.
- Constitutional Court Decision Noç 2019/25604, 21.09.2022, (OG, p. 32014, 15.11.2022) https://www.resmigazete.gov.tr/eskiler/2022/11/20221115-5.pdf (Access date: 18.11.2022)
- Küzeci, Elif: Kişisel Verilerin Korunması, İstanbul 2021, p. 108.
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