Turkish Law Blog

When Things Move in Opposite Directions: Reverse Mobbing & Turkish Law Analysis

Atakan Güngördü, Associate Atakan Güngördü, Associate/ CETINKAYA
Altuğ Özgün, Partner Altuğ Özgün, Partner/ CETINKAYA
13 October, 2020
189

Initially used to describe a behaviour pattern in birds, it was not until the 1980s that the term mobbing was first applied to workplace situations. Mobbing falls under the wider category of psychological violence at work, which is defined by the International Labour Organization (ILO) as the “intentional use of power, including threat of physical force, against another person or group that can result in harm to physical, mental, spiritual, moral or social development. [It] includes verbal abuse, bullying/mobbing, harassment, and threats.”[1]

It is often hard to detect mobbing since there is only a fine line between acceptable and inappropriate behaviour. The line becomes blurrier as different personality types in the workplace, and cultural norms around work come into play. However, a classic example of mobbing is systematic inappropriate behaviour towards employees or subordinates, aimed at forcing them to resign so that employers avoid facing compensation claims, such as severance pay.

What kind of behaviour constitutes mobbing?

In recent years, mobbing has become a trendy word to describe all types of behaviour by managers that employees deem to be unjust. Such over-usage of the word has led to an increase in mobbing lawsuits that are often groundless, based on claims such as heavy workload, low performance ratings, receiving verbal warnings, or even not hearing a manager say: “good morning”. Though they may be unpleasant experiences, these actions simply do not reach the threshold of mobbing. In this respect, the Court of Cassation has established that “in order for an act to constitute mobbing, it should be targeted at a worker, spread over a certain period of time and be systematic”.[2]

Given that other requirements established by the Court of Cassation are met, examples of behaviour that may constitute mobbing include:

  • Verbal aggression,
  • Excluding a victim from email chains or meetings,
  • Excluding a victim from social interactions at work,
  • Relocating a victim far away from the team in the office,
  • Ignoring a victim’s initiatives and feedback, and
  • Engaging in gossip to humiliate a victim.

How did mobbing become an unlawful act?

In Western countries, the concept of mobbing made its way into the legal sphere in the 1990s as states started to provide legislative protection for mobbing victims. The definition of mobbing as an unlawful act happened much later in Turkey, the process accelerated in 2000s thanks to civil society campaigns raising awareness. In 2008, the Court of Cassation upheld an instance court judgment and recognized mobbing in the workplace as an unlawful act for the first time.[3] Soon after, the Court of Cassation delivered a number of judgments on the issue and following the introduction of Article 417 in the new Turkish Code of Obligations (Law no. 6098), mobbing has undoubtedly become a hot topic for legal practitioners and employers in all fields of work in Turkey.

Which Turkish laws and legislation apply to mobbing cases?

Mobbing is an attack on the psychological wellbeing of a person, which essentially violates the right to a private life of the victim. In this respect, prior to moving to national legislation, Article 8 (the right to a private and family life) of the European Convention on Human Rights (ECHR) would be applicable in mobbing cases. In this regard, as a signatory of the ECHR, Turkish state authorities have a positive obligation to protect employees across the country from mobbing. Such an obligation would be fulfilled by, inter alia, enacting relevant legislation, raising awareness, and providing appropriate legal remedies for victims. Similarly, Article 17 (personal inviolability, corporeal and spiritual existence of the individual) of the Turkish Constitution leaves state authorities under the same positive obligation as Article 8 of the ECHR.

In Turkey’s national legislation, although it contains a non-discrimination provision, the Turkish Labour Code (Law no. 4857) does not explicitly regulate acts of mobbing in the workplace, save for Articles 24 and 25, which define sexual harassment as a rightful reason to terminate an employment contract for both parties. However, despite the lack of explicit provisions, mobbing in the workplace is increasingly regarded as a breach of an employer’s obligation to protect and supervise their employees, which is a fundamental principle under the Turkish Labour Code.

When seeking legal protection against mobbing, the most relevant provision is certainly Article 417 of the Turkish Code of Obligations (Law no. 6098). This provision, which was enacted in 2012, explicitly obliges employers to respect the personality rights of employees and protect them against mobbing (the law mentions “phycological harassment” as the correct wording), sexual harassment and any other type of harassment in the workplace.

Finally, a mobbing act may constitute a criminal offence. Mobbing is not a crime in the Turkish Penal Code (Law no. 5237) per se, but criminal law provisions on defamation, duress, extortion, torment, or discrimination may become relevant in a given case, depending on the actions of the perpetrator.

What are the available remedies in mobbing cases?

There are a number of legal remedies that a victim can resort to under Turkish law. These include, but are not limited to, (i) filing a lawsuit requesting the determination and termination of the attack on personality rights, (ii) claiming non-pecuniary damages for violation of personality rights, (iii) filing a reemployment lawsuit in the event of unjust termination of an employment contract and claiming employee compensation, and (iv) filing a criminal complaint in the event that a perpetrator’s actions constitute any of the crimes mentioned above.

What is reverse mobbing?

Contrary to the classic understanding of mobbing, reverse mobbing is hierarchically displaced mobbing. In classical mobbing, the perpetrator of systematic acts of psychological harassment is a manager or employer. In reverse mobbing, on the other hand, subordinates are the perpetrators of systematic unfair actions, which are often aimed at compelling a manager to quit or change their position within the company. Reverse mobbing is an increasing phenomenon especially in multinational corporations where internal grievance mechanisms regarding employee rights (e.g. speak-up hotlines) are well developed and where managers have annual targets regarding people management and retention.

What are the methods of reverse mobbing?

Of course, it is not possible to make an exhaustive list of reverse mobbing methods. With that said, some of the most common reverse mobbing methods used by junior staff against their managers are:

  • Slowing down work,
  • Collectively or individually abusing a company’s internal mobbing hotline by filing groundless complaints,
  • Obtaining fake sick notes during critical business periods
  • Deliberately making mistakes, in situations where a manager will be held accountable,
  • Failing to report or remind a manager of crucial business developments in order to harm the manager’s reputation through their eventual mistakes,
  • Destroying or hiding important documents from a manager,
  • Pretending not to know answers to questions asked by a manager,
  • Spreading rumours and unfounded allegations about a manager in a way that damages their authority, and
  • Especially when the perpetrators occupy key positions in the company; some other examples can be seen as: threatening to quit their job individually or collectively, confronting the manager in meetings with attendees from other departments or third parties, opposing the instructions of the manager to undermine their authority.

If we look at these through the lens of Turkish legislation, such actions can be considered as the disruption of an employer's control and supervisory authority over an employee. Facing these reverse mobbing methods can be a very unpleasant experience for managers who are also under pressure to meet yearly targets and contractual obligations. Since it is harder to prove reverse mobbing, managers are often laid off or forced to quit. Reverse mobbing perpetrators tend to reach their devious aims particularly in corporate structures where managers must also answer to senior managers and directors.

How can managers survive reverse mobbing?

Notwithstanding the legal complexities of arguing a reverse mobbing case before a court, if a reverse mobbing case makes its way to the courtroom in Turkey, the plaintiff would be able to seek similar remedies, to the extent applicable, that are available for classic mobbing victims. Such a legal interpretation is derived from the Turkish Labour Code which obliges employers to protect and supervise employees and the fact that the broad definition of mobbing inevitably includes both classic mobbing and reverse mobbing.

Currently there are no court decisions in Turkey acknowledging reverse mobbing. This is all too logical given that it is extremely difficult to prove reverse mobbing in a courtroom. Even prior to going to court, it is difficult for a manager to prove within their company that they have been subjected to reverse mobbing since internal investigations and exit interviews, let alone judicial proceedings, tend to protect subordinates. Therefore, ill-intentioned employees tend to achieve their aims.

Given that even internal procedures to prevent mobbing (e.g. speak-up hotlines) can turn into tools of mobbing themselves, companies should be extra vigilant to prevent reverse mobbing. Moreover, companies should have internal processes established that are geared towards identifying and preventing mobbing and reverse mobbing situations. It is crucial that internal investigations conducted in this regard should be free from bias and should aim to protect both employees and managers. Employees and managers alike should be able to seek support from human resources departments, making it essential for human resources staff to be trained and well equipped to engage with mobbing and reverse mobbing issues. On top of this, it is crucial that companies have reverse mobbing awareness at the highest levels and provisions are made to ensure that newly appointed senior managers are trained in this regard.

Overall, as part of their risk management framework, companies should seek guidance from legal and compliance experts regarding the implementation of relevant human resources, legal compliance policies, training and communication as part of a proactive risk-based approach; regardless of the sector that the company operates in. Because as Gary Cohn stated, “If you don't invest in risk management, it doesn't matter what business you're in, it's a risky business.”


[1] ILO, ‘Work-related Violence and its Integration into Existing Surveys’, October 2013, p. 13.

[2] Court of Cassation Assembly of Civil Chambers, judgment dated 25 September 2013 and numbered E. 2012/1925 K. 2013/1407.

[3] Court of Cassation 9th Civil Chamber, judgment dated 30 May 2008 and numbered E. 2007/9154 K. 2008/13307.


This article was first published here.

 

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