Whistleblowing in Turkey: A New Chapter Thanks to EU?
As per the Turkish Labor Law dated, June 10, 2013 and numbered 4557, an employer shall not terminate the labor contract entered into with an employee who files a complaint against an employer with regards to its obligations and rights stipulated under a legislation or the employment contract to competent administrative or judicial authorities.
In connection with the abovementioned provisions, as per the Turkish Criminal Code dated October 12, 2004 and numbered 5237, people who have witnessed or have the knowledge of a criminal offences which are currently in progress must report such offences to the Public Prosecutor’s Office, lack of compliance would result in criminal liability. In addition, failure to report an offence is punishable by imprisonment up to one year. Employee in question may also benefit from leniency provisions if the criminal offence is reported to relevant authorities.
Notwithstanding the foregoing, Turkish legislation does not establish a proper framework for whistleblowing for employees and other related parties to benefit. However, with the proposed European Union Directive adopted by the European Council on 12th March 2019 for the protection of whistleblowers (“Directive”) things may change as Turkey is currently negotiating its accession to the European Union.
The Directive and What It may Bring?
European Union does not offer a unified whistleblowing legislation and the current whistleblower legislations across EU member states constitute a fragmented legislative structure. Such legislative structure may have a negative impact on the functioning of EU policies especially when it comes to the members states that does not have any specific whistleblowing legislation. In addition, at EU level, whistleblower protections are offered to specific sectors.As such, whistleblowers working in sectors that lack whistleblowing protections are not properly protected against retaliation by the employer that may be committing a criminal offence.
The aim of the Directive is:
- Freedom of expression and right of information: Insufficient protection against the possible actions against the whistleblower have an adverse effect on freedom of expression as well as the public’s right to access information and media freedom. Protection of whistleblowers means that information related with the public interest would be easier to disclose to media.
- Protecting the employee against a possible employment termination: a higher level of whistleblower protection will be secured by establishing reporting channels and improving protection against a possible retaliation in the work-related context by the employee.
- Protection of private life, personal data, healthcare, environment, consumer good administration: The proposal may lead to an increase in the detection and prevention of breaches.
Reporting channels have a prominent role in whistleblowing. Therefore, establishing proper reporting channels for whistleblowing is important. As per the Directive, Companies that employ more than fifty (50) employees, companies with an annual business turnover or annual balance sheet total of EUR 10 million or more, companies that provide financial services or companies that are vulnerable to money laundering and terrorist financing are obliged to set up channels and procedures for whistleblowers to report safely. Public bodies are also obliged to set up channels with some exceptions exist especially for the municipalities with smaller populations. Member states shall also establish external reporting channels in accordance with the Directive.
Whistleblower retaliation is another important subject that is addressed in the Directive. In accordance with the Directive, EU member states shall take the necessary measures to protect the whistleblower against actions including but not limited to: termination of the employment, demotion, withholding of training, negative performance assessment and failure to convert a temporary employment contract into a permanent one. Whistleblower may use or disclosure of a trade secret a company for the purpose of revealing misconduct, wrongdoing or illegal activity, provided that general public interest exists for such disclosure.
Moreover, the Directive also stipulates reporting procedures that the whistleblower may follow. The Directive envisages three-tiered system. As such, whistleblower shall first contact reporting channels that collects reports. Subsequent to a three-month period with no response from internal reporting framework, whistleblower can refer to a competent national authority. The press and civil society come as a last resort if the second tier is insufficient. As per the Directive, whistleblowers may resort to the external channels, competent authorizes depending on the individual circumstances of the whistleblower and also media. The Directive also softens the rules regarding public reporting as it puts less burden on the whistleblower as reasonable belief of wrongdoing shall be sufficient unless proven otherwise.
Following the adoption of the Directive, member states shall have the obligation to comply with the directive in two (2) years. This may also encourage Turkish lawmakers to adopt similar rules to protect whistleblowers especially the reporting employees. The scope of the Directive is not yet clear and may affect the EU companies and citizens currently doing business in Turkey. As a result, Turkey may be obliged to draft its own whistleblowing legislation in relation with the Directive.
 Dırectıve of the European Parlıament and of the Councıl on the Protection of Persons Reporting on Breaches of Union Law
Author: Batuhan Ecin