Regardless of the industry and geography, recruiting the right employees and retaining existing talent is still at the heart of human resources strategies for companies. Companies use different practices to keep employees from different generations united in business life harmoniously, aiming to provide extra motivation and increase employee commitment by using workplace practices.
By repeating the benefits provided to employees without any contractual or legal obligation, continuously, and under similar conditions, routines become “workplace practices” and may become binding for employers. The principles of a relationship between an employee and an employer in our Labor Law are freely determined within the framework of the provisions of the individual or collective labor agreements, provided that they do not violate the mandatory legal rules in legislation. In addition to contracts, employers may organize various internal regulations and workplace practices to create acceptable working conditions, and order in the workplace. Because side rights often used in business life may also be considered to be workplace practices, it is important to conduct a preliminary legal analysis of the issue.
Definition of Workplace Practices:
Workplace practices are habitual, actual behaviors in which an employer, using their own initiative, provides a benefit continuously and under the same or similar conditions. Workplace practices regulated by an employer in accordance with the first paragraph of Article 22 of the Labor Law No. 4857 ("Labor Law") are considered to be an annex of employment contracts.
Examples of Workplace Practices:
Examples of frequently encountered workplace practices nowadays include; premiums and bonuses provided to employees, financial aid in cases such as birth, death, illness, marriage, payment of wages to an employee for the time spent on the road, termination of work contracts by adhering to the prerequisites determined by law, provision of aid, public housing, additional outreach, such as clothing, fuel assistance and other financial gains, and longer paid annual leave periods than those stipulated by law.
What Are Flexible Side Benefits?
In order to increase employee loyalty and improve business conditions, “flexible side benefits”, which have been frequently preferred by international companies recently, appear as personalized benefits provided to employees. Side benefits such as social security and health insurance have been mandated by legal regulations in many countries, while side benefits and workplace practices throughout the workplace aim to make employers' firms and working conditions more attractive. Considering how the priorities, needs, and expectations of each employee may differ in the modern business world, the importance of the positive effect of flexible side benefits in terms of employee motivation can be easily understood. Flexible side rights offered by an employer become part of the business relationship between the parties when accepted by an employee and will be considered as a provision of the business contract. The flexible side rights model is not general in nature, changing on an employee-by-employee basis, and does not constitute a workplace practice due to the fact that it is not provided universally.
What Criteria Determine the Acceptance of an Application as a Workplace Practice?
As the criteria have not been clearly defined by the legislature, precedent plays a large part in deciding what constitutes a workplace practice. The criteria that will be evaluated have been shown in the settled case-law of the Court of Cassation. Any evaluation will examine whether an employer has created a justified expectation in accordance with the rule of honesty as a result of their actual behavior, as opposed to what they think or wish to be binding in the future.
In order to be able to identify what workplace practices will be specified as an annex of an employment contract, the criteria set by the Court of Cassation should be examined:
- The first factor to be considered is whether an employer’s actions are applied to all individuals in the workplace or a certain employee group. The various benefits that an employer unilaterally grants to employees of different qualifications individually may be considered as an implicit provision of their employment contracts but cannot be interpreted as workplace practices because they are not general in nature. In practices applied throughout the workplace, pursuant to the "principle of equal treatment" in Labor Law, the employer is obliged to treat employees of the same qualifications equally as a rule and apply the benefits provided accordingly.
- Another criterion taken into account is whether the application in question constitutes continuity by its repetition over a certain period in the workplace. There is no specified period that establishes continuity and Court of Cassation decisions on this issue vary. To be evaluated as a workplace practice, "according to the nature of the event, there should be enough time for employees to deduce that the practice has become a habitual behavior in the workplace and that it will be done in the future according to the rule of honesty."
Another issue considered by the Court of Cassation is provision under the same conditions. The repetition of payments and benefits by an employer that meet the criteria so far observed but also contain some changes in the sense of quantity or quality will be considered as the basis for a continuous workplace practice. In cases where a benefit is not precisely determined, it will be determined according to equity  If a set rate in terms of the amount or nature of a benefit is mentioned, it will be assumed that the workplace practice encompasses the same amount and quality, or that it will be determined by the same calculation method. In cases of inadequate provision, employees will be able to demand that their rights derived from a workplace practice are fully granted. When the provision of a benefit is dependent on the realization of a certain condition, it will be possible to evaluate an application that continues over the years as a workplace practice and employees will be entitled to the benefit when the condition is met.
What are the Consequences of Workplace Practices?
If the criteria are identified, these behaviors will be considered as workplace practices and also considered as a provision of the employment contract between the parties.
Any fundamental changes in conditions made by an employer to a workplace practice that meets the criteria in established case-law of the Court of Cassation, and discussed above, pursuant to Article 22 of the Labor Law, can only be made with the written consent of an employee.
Ultimately, to give an example of benefits that will not constitute a workplace practice, in cases where an employer reserves the right to waive while providing a benefit to workers, the practice will not become a workplace practice. Furthermore, benefits provided to employees as a result of fault, such as miscalculations and extra premium payments, cannot be considered to constitute workplace practices.
Workplace practices emerge as complementary resources. In the beginning, these practices, which are unilaterally offered by an employer and are not binding, will be included in the content of an employment contract when certain conditions are met so that the employer will not be able to unilaterally retreat from these practices. Practices implemented at the initiative of an employer in the whole or certain parts of the workplace become workplace practices if they are repeated for a certain period of time under similar conditions, resulting in additional obligations for employers. For the avoidance of periodic incentives and benefits provided to individuals becoming workplace practices, employers are advised to make the necessary administrative and legal analysis before taking any action.
With thanks to Simay Yetimoğlu for her assistance on this article.
 Court of Cassation 7th Civil Chamber, numbered 2015/43401, 2016/6392, and dated 16/03/2016.
 Court of Cassation 9th Civil Chamber, numbered 2010/22802, 2012/41757, and dated 06/12/2012.
 Court of Cassation Assembly of Civil Chamber, numbered 2003/11, 2003/54, and dated 05/02/2003.
 Court of Cassation 9th Civil Chamber, numbered 2002/14254, 2003/2020, and dated 20/02/2003.
 S. Süzek, Labor Law, 15th Edition, İstanbul 2018, p. 84
 P. Soyer, General Labor Law, İzmir 1987, p. 43-44
 Court of Cassation 9th Civil Chamber, numbered 2008/34000, 2008/35532, and dated 26/12/2008.
Kemal Altuğ Özgün