Law No. 6663 (the “Amending Law”), which entered into force on 10 February 2016, introduced significant improvements to employees’ parental rights^[1]. Whether these new rights are sufficient to allow for workplace practices to adapt to the realities of modern family life is questionable, but they certainly can be seen as a step forward. More specifically, the changes introduce; (i) the right for new parents to work part-time for a meaningful period of time, (ii) maternity leave, under certain circumstances, for fathers and adopting parents, (iii) the right to unpaid leave, after maternity leave has been fully used, for half of the normal weekly working time for a specific period of time, and (iv) the entitlement, after giving birth or adopting a child, to half-time working allowance to be paid by the Social Security Administration.

Of these changes, this article will focus on the right of new parents to work part-time.

The main principles and conditions of the Right to Work Part-Time

Through two new two paragraphs added at the end of Article 13 of the Labor Law, the Amending Law provides new parents with the right to work part-time. The Regulation on Working Part-Time after Maternity Leave or Unpaid Leave (the “Regulation”) sets forth further details about this new right^[2].

What is “part-time” work?

Working part-time is defined as employment for up to two-thirds of the regular working period of a full-time employee in a particular work place. Thus, for example, if the regular working period of a full-time employee in a work place is 45 hours, working for 30 hours or less is regarded as part-time.

When does this right to work part-time exist and how is it exercised?

A biological parent/employee, when both parents work, is entitled—with a few exceptions—to work part-time during the period starting from the end of the paid maternity leave, and any unpaid leave (if taken)^[3], until the first day of the month following the child reaching the age of compulsory education (i.e. 5.5 years of age). A parent adopting a child under the age of three, either individually or together with his or her spouse, may exercise this right from the date custody of the adopted child is given to the parent(s).

A parent/employee who wants to benefit from the right to work part-time must notify his or her employer in writing, one month prior to starting part-time work. According to Article 9 of the Regulation, this request is to include the commencement date of the part-time work as well as the starting and finishing times of each working day, and in addition the employee’s preferred working days when he or she is to work fewer than all other normal working days.

What happens next—or more precisely, just how much discretion the employer has with respect to the employee’s request—is somewhat unclear. Article 15 paragraph 1 of the Regulation provides, seemingly in conflict with Article 9, that:

The employer will determine the time period during which part-time work will be performed within the determined daily and weekly working periods, by taking into account local traditions, the nature of the work and the employee’s request.

There are at least two views about how to interpret this provision. According to one view, it is the employee who is entitled to determine how many hours in a day and a week he or she will work, with the employer only determining which days and which particular hours the employee is to work, while taking into account local traditions, the nature of the work in question and the employee’s stated preferences. The other view is that, notwithstanding the employee’s stated preferences, the employer has complete discretion to determine the employee’s working days and hours, with the only limit on that discretion that the employer is only to consider the employee’s preferences (really no meaningful limit at all). We believe that this issue will be addressed and clarified by, for example, scholarly articles and/or decisions of the Turkish Court of Appeals.

About the part-time wage, and the division of other monetary benefits of the employee exercising his or her right to work part-time, such remuneration is to be paid on a pro rata temporis basis, i.e. according to the percentage the part-time work is of the employee’s previous working hours.

With limited exceptions, only one of the parents is allowed to use the right to work part-time. Given that, the parent/employee exercising this right must attach to the written request a document certifying that his or her spouse works. In other words, if one of the parents does not work, then the working parent is not entitled to exercise this right.

The exceptions to the requirement that both parents work, as set forth in the Regulation, include:

• When one of the parents has an illness, which requires continuous treatment and care, provided this condition is verified through a medical report obtained from a general or university hospital;
• When the parental right is given to only one of the parents by a court, and that parent makes the request to work part-time; or
• When a child under the age of three is adopted by a single individual only.

Other than when the limited exceptions listed in the below section apply, an employee’s request to work part-time must be accepted by the employer. In other words, the employer is obliged to accept the request—although, as also mentioned, just how much if any discretion the employer has in determining the details of the part-time work is an open question—and arrange the requested part-time work within one month of receipt of the request. The employer must immediately inform the employee, in writing, of its acceptance of the request. If the employer fails to respond as such, the request enters into force on the date specified by the employee in his or her request (or, at the latest, on the following working day). Of note here is that a valid request by an employee to work part-time is not deemed a valid reason for termination of employment, provided the employee starts the requested part-time work on the specified date.

The right to work part-time is not available for certain types of work

Significantly, in certain limited circumstances an employer has the right to reject an employee’s request for part-time work, including for the following types of work, the exact nature of which is set forth elsewhere in Turkish law^[4]:

• Work performed by a person who is (i) expected to work full-time while providing certain medical services, (ii) a “responsible manager (mesul müdür)”, (iii) a “responsible doctor (sorumlu hekim)”, or (iv) a “laboratory officer” in a private healthcare organization;
• Certain industrial work, the nature of which requires a “continuous” working schedule and for employees to work “successive” shifts;
• Certain seasonal, “campaign” (e.g. such as a limited sales campaign) or contractual work (taahhüt işleri), which is performed for a period of less than one year due to their nature; or
• Work whose nature does not allow for dividing the working periods between different working days (e.g. transportation related work involving long distance travel by land, air or sea).

Regarding the above, the Regulation provides that parties to a collective labor agreement may determine the types of works where part-time work is allowed, whether or not one of the specified types of works set forth above is involved.

The right to return to full-time work

An employee, who has started to work part-time pursuant to the Amending Law and Regulation, may return to full-time work by providing written notice, at least one month in advance of the return to full-time work, to the employer. In this case, however, the employee may not once again request part-time work for the same child.

When an employee who had been working part-time returns to full-time work, the employment agreement of any employee hired as a replacement is automatically terminated. At the same time, if an employee who has started to work part-time pursuant to the Amending Law and Regulation terminates his or her employment agreement, the employment agreement of the replacing employee is converted to an indefinite term, full-time agreement as of the termination date, provided the replacing employee consents to this conversion in writing.

Conclusion

While the Amending Law and Regulation set forth detailed rules regarding the right to work-part time, it also leaves a certain amount of uncertainty about the exercise of this new right. If, for example, it turns out employers are deemed to have full discretion when determining the working days and hours employees will be allowed to work on a part-time basis, then employers—acting in bad-faith—may end up rendering the new right to work part-time, as a practical matter, meaningless. It will be of great importance that this and other uncertainty is addressed, by the Parliament and/or the Courts as soon as possible. We will be following developments, if any, associated with this new law closely, and plan to provide periodic updates regarding any such developments. In the meantime, please to not hesitate to contact us with any questions you may have about this important new law and/or to request assistance regarding any implications it may have on you or your business.