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Introduction
An employment contract establishes a continuous obligation relationship based on mutual trust between the parties. One of the fundamental elements of this relationship is the employee's duty of loyalty towards the employer. Where an employee terminates an existing employment contract in an unlawful or improper manner and commences work for another employer, such conduct may constitute a breach of this duty. Under Turkish Labour Law, the liability of a new employer who induces an employee to act in breach of the duty of loyalty is primarily regulated under Article 23 of the Labour Law. This study examines the conditions, legal nature, and scope of the new employer's liability within the framework of this provision.
I. Liability of the New Employer under Article 23 of the Labour Law
Article 23 of Labour Law provides that where an employee terminates an existing employment contract in an unlawful or improper manner and enters into employment with another employer, the new employer may, under certain conditions, be jointly liable together with the employee. The liability of the new employer is recognized in three situations:
- where the new employer inducing the employee to engage in this behavior (seducing the employee),
- where the new employer employs the employee with knowledge that the employee left the former employment in this manner.
- where the new employer continues to employ the employee after becoming aware of the situation.
This provision constitutes the only explicit statutory regulation under the Labour Law that attaches a sanction to inducing an employee to act in breach of the duty of loyalty.
II. Conditions for the Liability of the New Employer
A. Requirements from the Employee Perspective
For the new employer's liability to arise, certain conditions must first be met from the employee's perspective:
- The employee's employment under a permanent employment contract subject to the Labor Law,
- The employee must have terminated the employment contract in an unlawful or improper manner,
- Following such termination, the employee must have entered into employment with another employer,
In a fixed-term employment contract, if the employee leaves the job before the contract expires, these conditions shall be deemed to have been fulfilled. The concept of "entering into employment" encompasses not only actual performance of work, but also the establishment of the employment contract and the commencement of the employment relationship.
The legislator has not been concerned about the reasons for which the employee terminated the employment contract in an unlawful or improper manner. Accordingly, for the purposes of Article 23, no distinction is made between termination as a result of inducement by the new employer and acceptance of a job offer after termination.
B. Conditions Relating to the New Employer
1. Inducement of the Employee (Article 23/1-a)
If the new employer intentionally causes the termination of the employee's current employment contract in an unlawful or improper manner, legal liability arises as a special case under Article 49/2 of the Turkish Code of Obligations. Such conduct may be carried out directly by the employer or through a third party acting upon the employer's instructions. However, where the third party exceeds its authority, the liability of the new employer does not arise.
Liability under this subparagraph is not subject to any temporal limitation.
2. Employment with Knowledge (Article 23/1-b)
Where the new employer employs the employee despite being aware that the employee terminated the previous employment contract in an unlawful or improper manner, the new employer becomes jointly liable together with the employee. In this case, active inducement is not required; knowledge and acceptance are sufficient.
If the new employer becomes aware of the situation only after the employment relationship has been established, liability under this subparagraph does not arise.
3. Continuation of Employment after Becoming Aware (Article 23/1-c)
If the new employer continues to employ the employee after learning that the employee terminated the previous employment contract in an unlawful or improper manner, the new employer is again jointly liable with the employee. In order to avoid liability, the new employer must terminate the employment contract after becoming aware of the situation.
According to the prevailing view in the doctrine, this termination must be made within six days of learning of the situation through termination without notice. Otherwise, the new employer's liability continues.
III. Legal Nature of the New Employer's Liability
A. In Cases of Inducement
The liability arising under Article 23/1-a is predominantly characterized in doctrine as tort liability. As explained above, as a specific manifestation of Article 49/2 of the Turkish Code of Obligations, the new employer's intentional and unlawful conduct causes damage to the former employer. However, the fact that the Labour Law does not expressly require proof of damage alleviates the burden of proof for the former employer.
B. In Cases of Employment with Knowledge and Continuation of Employment
The liability arising under Articles 23/1-b and 23/1-c is generally regarded as statutory liability. In these cases, it is difficult to establish a classical tort relationship between the conduct of the new employer and the damage suffered by the former employer. Nevertheless, the legislator has imposed liability on the new employer with the aim of deterring such terminations by employees.
IV. Nature and Scope of Joint Liability
The joint liability provided for in Article 23 of the Labor Code is of a cumulative nature. The former employer may demand the entire amount owed from either the employee or the new employer, or from both; the liability of both continues until the entire debt is paid off.
The liability of the new employer covers:
- notice compensation,
- any contractual penalty stipulated in the employment contract in relation to the nature of the termination.
However, the liability of the new employer does not extend to contractual penalties arising from the breach of non-competition agreements. In cases of unfair competition, if the conditions are met, liability may also be sought based on the provisions of Article 54 et seq. of the Turkish Commercial Law.
Conclusion
Article 23 of the Labour Law addresses the employee's breach of the duty of loyalty not merely as an individual contractual violation, but also as a phenomenon that disrupts the balance of the labour market and accordingly subjects the new employer to liability under certain conditions. In practice, recourse to legal remedies based on this provision is relatively rare. While the regulation aims to deter employees from changing jobs through unjustified or irregular termination, the liability envisaged particularly under Article 23/1-c remains controversial in the doctrine. Nevertheless, under the current legal framework, it is of significant importance for new employers to examine the manner in which an employee's previous employment contract was terminated during the recruitment process, in order to prevent potential future liabilities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
