An employee who completes one year at a workplace is granted a period of rest during which they continue to receive their wages although they are not working. Annual paid leave, which draws its source directly from the Constitution, is framed as a safeguard directed at protecting the employee’s physical and mental health, and it cannot be freely disposed of.
The function of rest in working life is not merely individual; it is also a necessary element in terms of productivity and occupational health. Keeping an employee at work without interruption, without granting their leave, therefore constitutes unlawfulness. On the other hand, the date on which the leave is to be taken is not left entirely to the employee’s preference; in practice the calendar is set within the framework of the employer’s managerial prerogative.
The basic framework of the subject has been drawn by the Constitution and the Labour Act, while the details have been shaped by judicial case law. In this briefing note we address, in turn, the headings that give rise to the greatest doubt in practice, such as how many days the leave amounts to, how length of service is calculated and what becomes of leave that is not taken.
What Is the Right to Annual Paid Leave?
Legal Nature
The right in question is an employment right of a mandatory character that cannot be waived, introduced in order to secure the employee’s rest while the employment relationship continues. Its arising does not depend on the employer’s will but stems directly from the statute; moreover, it is not enough for it to be recognised merely on paper — it must actually be granted.
The conditions and scope of the right have been placed under statutory regulation. Article 53 of the Labour Act No. 4857 contains the following wording:
Labour Act No. 4857, Art. 53
“Employees who have worked for at least one year from the day they started work at the workplace, including the probationary period, shall be granted annual paid leave.”
As is apparent from the provision, it is expressly accepted that the right to annual paid leave arises for employees who have at least one year of service with the same employer.
The Employee’s Right to Rest
It is not correct to regard annual leave as a kind of “additional benefit” provided in return for work; what is at issue here is a mandatory period of rest serving the aim of protecting health. Keeping an employee at work without any break is contrary both to the law and to the principles of occupational health and safety. For this reason the planning and granting of leave is a duty assumed by the employer, without being made dependent on a request from the employee.
Constitutional Basis and Purpose
Rest is a right secured by Article 50 of the Constitution. Resting on this constitutional foundation, annual paid leave aims to preserve the employee’s physical and mental integrity, to raise productivity at work and to maintain peace at the workplace.
In the final analysis, annual leave is on the one hand a right to rest recognised at constitutional level and on the other a fundamental employee safeguard framed by the mandatory rules of labour law.
Conditions for Becoming Entitled to Annual Paid Leave
The signing of an employment contract does not by itself give rise to the right to leave; the right is acquired upon the completion of the length of service required by the statute. In determining whether the right has arisen and what its scope is, the nature of the work, the type of contract and the features of the job are considered together.
The One-Year Service Condition
Article 53 of the Labour Act requires, for entitlement to leave to arise, that the employee has completed one year from the date of commencing work with the same employer. The criterion in calculating this one year is not only the days on which work was actually performed; periods deemed to have been worked by law are also taken into account. Weekly rest days, national and public holidays, previous periods of annual leave, short periods of sick leave taken on account of illness and the other periods the statute deems to have been worked fall within this scope.
Where work has been performed at more than one workplace of the same employer, these periods are not dealt with separately; the assessment is made on the basis of total length of service. Although the right does not arise until one year has been completed, the parties may by agreement grant the employee leave in the nature of an advance.
The Position of the Probationary Period
The probationary period is among the periods taken into account. Even if such a period has been agreed in the contract, the time elapsed is added to the employee’s length of service. An employee who completes one year with the probationary period included therefore becomes entitled to leave. If, on the other hand, the contract ends within the probationary period, no right to leave whatsoever can be spoken of, since the required one year of service will not have been achieved.
The Position of Part-Time Employees
Part-time employees also benefit from annual paid leave. Whether the contract was established on a full-time or part-time basis creates no obstacle to the arising of the right. A part-time employee who meets the length of service condition takes leave on the same principles as full-time employees; as the period is determined in days, a shorter weekly working time does not reduce the number of days of leave. In this respect the right is one tied not to working time but to length of service.
Employees in Seasonal and Campaign Work
Under the same article, those employed in seasonal or campaign work that by its nature lasts less than one year cannot, as a rule, benefit from this right. Even so, where a seasonal employee reaches a total of more than one year of work with the same employer, albeit at intervals, the practice of the Court of Cassation may accept that the right has arisen. There are decisions to the effect that, where the work performed is in reality continuous in character, the employee must be allowed to benefit from annual leave.
Periods of Annual Paid Leave
The length of the leave period varies according to the length of service the employee has spent with the same employer. Article 53 of the Labour Act No. 4857 has determined the minimum numbers of days to be granted on the basis of bands of length of service.
These periods set out in the statute constitute a floor; they may be raised by an individual or collective employment agreement, but they cannot be reduced. Given the mandatory character of the provision, the employee cannot waive this right.
As a rule, the leave relating to each year of service is taken within the year of service following the year in which the entitlement was acquired. It is prohibited to have the employee work during the leave period. When the provisions are read as a whole, it is seen beyond doubt that the legislature intended genuine rest during this period.
In the case law of the Court of Cassation, it is accepted that days of illness that fall within the leave period and are established by a medical report may, depending on the features of the case, not be counted towards the leave period.
Employees Under Eighteen and Over Fifty
The annual leave to be granted to employees aged under eighteen or over fifty cannot be reduced below 20 days. Whatever their length of service, these employees take at least 20 days of leave.
Employees in Underground Work
For employees working underground, the statutory periods are applied with 4 days added.
How Is the Annual Leave Period Calculated?
The criterion in determining the leave period is the employee’s total length of service with the same employer. Not only the days actually worked but also the periods deemed to have been worked by law are included in the calculation. The correct establishment of length of service is a decisive stage in identifying the number of days to which the employee is entitled.
Calculation Based on Length of Service
The number of days is arrived at according to the period of service spent with the same employer. In addition to the days the employee actually worked, weekly rest days, national and public holidays, short periods of sick leave and the other periods the statute deems to have been worked are also taken into consideration in the calculation. Long periods of unpaid leave and certain periods during which the contract was suspended may, by contrast, be left outside the calculation of length of service.
Different Workplaces of the Same Employer
Where the employee has worked at various workplaces of the same employer, these periods are dealt with together rather than piecemeal. That the employer is the same legal person is sufficient for this aggregation. Even if the workplace changes, all periods of service spent with the same employer are added together and the right to leave is established on the basis of total length of service.
Aggregation of Periods of Service
An intervening break in the contract does not, as a rule, reset length of service to zero. Where the employee has worked in different periods with the same employer and the gap between those periods can be regarded as reasonable, the periods of service may be aggregated. Where the workplace has been transferred, the period spent during the transferring employer’s time is likewise added to length of service and the leave period is determined accordingly.
The Effect of Unpaid Leave and Periods of Suspension
Every period during which the contract is suspended is not credited to length of service in the leave calculation. Long periods of unpaid leave in particular are, as a rule, kept outside the calculation, since these are periods in which the employee neither worked nor received wages. On the other hand, certain instances of suspension that the statute expressly deems to have been worked — short-term illness, compelling reasons and the like — are included in length of service. For this reason the effect of unpaid leave and periods of suspension on the right to leave must be examined on the concrete data in each dispute.
How Is Annual Leave Taken?
Annual paid leave is a statutory opportunity to rest for every employee who completes one year at the workplace. However, the period in which the leave is to be taken is not determined by the employee’s preference alone. The schedule for granting leave is drawn up within the scope of the employer’s managerial prerogative, and in doing so the order of the workplace, the uninterrupted running of the work and the requirements of the organisation are taken into account. At the planning stage, a reasonable balance is sought between the employee’s need for rest and the needs of the business.
Taking Leave in Instalments
The rule is that leave is granted without being divided. Even so, if the parties agree, the period may be split into parts. What is decisive is that the leave achieves its purpose, that is, that the employee is genuinely able to rest. Dividing the period entirely into small parts and granting it in a manner that removes the purpose of rest is therefore not regarded as lawful.
The Uninterrupted Ten-Day Block
The Labour Act requires that part of the leave be granted for at least 10 uninterrupted days. This rule was introduced with the thought that the employee should be able to recover physically and mentally. The remaining days may be spread over different periods by agreement between the parties.
The Employer’s Obligation to Grant Leave
Granting leave is a statutory obligation on the employer’s part. The employer cannot extinguish this right, cannot refrain from granting it and cannot have the employee work during the leave period. Practices to the contrary constitute a contravention of the mandatory provisions of labour law.
The managerial prerogative is not unlimited either. In exercising this power, the rule of good faith (Turkish Civil Code No. 4721, Art. 2) must be observed. Granting an employee no leave at all for a lengthy period, or continually postponing requests without a valid reason, may be characterised as an abuse of the managerial prerogative.
Procedure for Requests and Planning
Under Article 7 of the Annual Paid Leave Regulation, the employee must notify the employer in writing at least one month in advance of the date on which they wish to take leave. Even so, fixing the date is not solely within the employee’s initiative; the employer may plan by taking into account the volume of work, the organisation and the leave position of the other employees.
If placing several employees performing interrelated duties on long-term leave at the same time would disrupt the flow of work, the employer may postpone the request or propose another date. This stance is regarded as an ordinary manifestation of the managerial prerogative.
How Is Annual Leave Pay Calculated?
Annual leave is a period during which the employee continues to receive their wages while resting. The amount to be paid is therefore determined on the basis of the wages the employee receives in return for their work. Making an underpayment during the leave period, or postponing payment, is unlawful.
The Gross Basic Wage Basis
The wage taken as the basis in the calculation is the employee’s gross basic wage. The items not taken into account as a rule are as follows: social assistance payments, payments that do not show continuity such as premiums and bonuses, and amounts paid in return for overtime work.
Leave pay is arrived at by multiplying the daily gross wage by the number of days of leave:
Daily gross wage x number of days of leave = Annual leave pay
The daily wage here is obtained by dividing the monthly gross wage by 30.
Timing of Payment
Under the Labour Act, the employer is obliged to pay the wages relating to the leave in advance or as an advance payment before the employee goes on leave. The complete non-payment of these wages during the leave period, or their delay, constitutes a contravention of the statute.
Having the employee work on days on which they are on leave is likewise prohibited. If such work takes place, leave is not deemed to have been granted in respect of the days in question and the employee may separately claim the return for the work performed.
The Treatment of Premiums, Bonuses and Ancillary Benefits
At the centre of the calculation lies the “basic wage”. Whether a payment is to be included in the wage may nevertheless differ according to the nature of that payment.
- Payments that recur regularly and that have over time become a part of the principal wage — such as a sales premium made steadily every month — may be regarded as falling within the wage.
- Payments that vary according to performance, or that are made incidentally or at irregular intervals, are as a rule not taken into account.
In the practice of the Court of Cassation too, in determining whether an item enters into the calculation of leave pay, the criterion taken is whether the payment shows continuity and regularity.
What Happens if the Employer Does Not Grant Annual Leave?
As annual leave is a fundamental right to rest that the employee cannot waive, it must be granted by the employer. Although the power of planning falls within the managerial prerogative, that power is not unlimited. In fulfilling the obligation to grant leave, the employer must act in accordance with the criterion of good faith in Article 2 of the Turkish Civil Code No. 4721. For granting leave is among the employer’s primary duties in terms of protecting the employee’s physical and mental health, raising productivity, sustaining motivation and maintaining peace at the workplace.
Does Refusing Leave Amount to Just Cause for Termination?
A failure to grant leave does not in all circumstances give the employee a direct right to terminate for just cause. Even so, according to the settled and current decisions of the Court of Cassation, the employee may terminate the employment contract for just cause in the following two situations:
- Where the employee’s request for leave is refused without a valid reason being given,
- Where the employee is granted no leave at all over a very long period.
The higher court’s approach to the subject is summarised as follows:
“For a failure to grant annual paid leave to be treated as just cause for termination, the annual leave must not have been granted for a very long time and must have been withheld for an unjustified reason despite a request.”
Another formulation found in the settled case law is as follows:
“For a failure to grant annual paid leave to be capable of constituting just cause for termination, the employee must have been granted no leave at all for a long time, or leave must have been refused without reasons despite being requested.”
Accordingly, a one-off refusal of leave, or short postponements, are as a rule not regarded as sufficient for termination for just cause.
An employee who asserts that they terminated on such a ground bears the burden of proving that allegation in the action they bring. The court reaches its conclusion by assessing together the features of the case, the employee’s period of work, the requests made and the employer’s attitude towards them.
Risk of Administrative Sanction
A failure to grant leave does not merely give rise to an individual dispute for the employer; it may also lead to an administrative sanction. Under the Labour Act, an administrative fine may be imposed on an employer who does not grant annual leave to their employee or who does not keep leave records in the proper form.
Allocation of the Burden of Proof
Proving that leave was granted falls, as a rule, on the employer. The employer must establish this matter by written documents; signed leave forms, a leave register or schedules and written personnel records may be used for this purpose. Where there is no written document, it may be accepted that the employee did not take their leave and, accordingly, a claim for leave pay comes into play.
Assessment
To sum up, although the granting of leave falls within the managerial power, the exercise of that power in the form of granting no leave for a long time or unjustly refusing requests may be characterised as an abuse of the right. Where the dispute comes before the courts, the court decides by examining, within the framework of the particular case, whether the employer acted in good faith, whether leave was taken and, if it was not, the reasons for this.
Frequently Asked Questions
Can annual leave be taken in instalments?
Leave is as a rule granted as a whole. If the parties agree, the period may be split into parts; however, one part must be granted as 10 uninterrupted days. The purpose of this requirement is to guarantee that the employee genuinely rests.
Is the employer obliged to grant annual leave?
Yes. Annual leave is a right the employee cannot waive and it must be granted by the employer. The employer cannot continue to have the employee work without granting leave, cannot extinguish the right and cannot choose to pay wages in place of leave. Refusing leave for a long time gives rise to unlawfulness and may in some cases give the employee just cause for termination.
Does untaken annual leave lapse?
No. So long as the employment contract continues, the right does not disappear; untaken leave accumulates. When the contract comes to an end, periods of untaken leave are converted into wages and paid to the employee. The limitation period for this claim begins to run from the date of termination.
What happens to untaken leave when the employment contract ends?
Where the contract comes to an end, untaken days of leave are calculated on the basis of the employee’s last gross wage and paid to them. The basis for the payment is that the employee is treated as having worked on those days. The claim in question is in the nature of an employment claim, may be made the subject of an action and interest may be sought on it.
Are wages paid during leave?
Yes. Although the employee does not work during the leave, they continue to receive their wages. The employer must pay the wages relating to this period in advance or as an advance payment before the employee goes on leave. A failure to make the payment, or a delay in it, is unlawful. It is also prohibited to have the employee work on days on which they are on leave.
Who sets the date of the leave?
Fixing the date has not been left to the employee alone. The employer may plan by having regard to the running and organisation of the workplace; where the flow of work would be seriously disrupted, it may postpone the request. Continually refusing requests without a valid reason may, however, be assessed as an abuse of the managerial prerogative.
Does a failure to grant leave give rise to a right to severance pay?
Not in every case. According to the Court of Cassation, where an employee is granted no leave for a very long time or their request is refused without a justified reason, the employee may terminate their contract for just cause and may become entitled to severance pay. An employee who advances this allegation bears the burden of proving that leave was not granted.
On what basis is the leave period calculated?
The basis of the calculation is the employee’s total length of service with the same employer. Not only actual work but also periods deemed to have been worked by law are taken into account. Periods spent at different workplaces of the same employer are aggregated. On the other hand, certain instances of suspension, such as long-term unpaid leave, may not enter into the calculation of length of service.
What is the limitation period for annual leave pay?
A leave claim is not a claim that may be made while the contract continues; it is converted into wages and falls due upon the ending of the contract. The limitation period therefore also runs from the date of termination. Under the Labour Act No. 4857, the limitation period for annual leave pay claims is 5 years. So long as the contract continues, the right to leave does not become time-barred.
What are the employer’s obligations?
The employer is obliged to grant the employee their right to annual paid leave, and as this obligation is mandatory in nature it cannot be set aside even with the employee’s consent. What is expected of the employer is that it plan the leave, keep records in order and not have the employee work during the leave period. Granting no leave for a long time may be regarded as an abuse of the managerial prerogative and may in some cases give rise to just cause for termination.
Who proves that leave was taken?
The burden of proof lies with the employer. The employer must establish that leave was taken by written documents, and written evidence is as a rule required; witness testimony alone may not be regarded as sufficient. Where documents such as a signed leave form, a leave register or a personnel leave schedule are absent, it may be accepted that the leave was not taken and leave pay may be claimed.
Is keeping a leave record document mandatory?
Yes. The employer must draw up a leave record document showing that annual leave was granted. The document must bear the employee’s signature and must clearly set out the dates between which leave was taken. A complete failure to keep records, or their not being drawn up in the proper form, may produce a result against the employer in the event of a dispute and may also lead to an administrative fine.
Can annual leave be converted into money?
It is not possible to convert the right to leave into money while the contract continues. Where the employment contract comes to an end for any reason, by contrast, untaken leave is converted into wages. In that case the employee is paid, on the basis of the last gross wage, for the days earned but not taken. The claim falls due on the date of termination and may be sued upon.
Can an employee waive the right to leave in return for payment?
As a rule, no. So long as the contract continues the right cannot be converted into money; the employee cannot waive this right by taking wages in place of leave. The purpose of the provision is to ensure that the employee actually rests. Upon the ending of the contract, however, untaken periods are necessarily converted into wages and paid.
Does accumulated leave carry over to the following year?
So long as the employment contract remains in force, untaken leave does not lapse but carries over. The employee may accumulate leave relating to past years. Even so, the employer is obliged to grant the leave within a reasonable time. Where excessive accumulation is in issue, the employer is expected to make plans and ensure that the leave is taken.
Can an employee work in another job while on leave?
No. The Labour Act prohibits an employee from working in another job for payment during the annual leave period. Where this is established, the employer may seek the return of the leave pay it has paid. The provision shows that leave is granted for the purpose of rest and cannot be used to obtain commercial gain.
Are official holidays deducted from the leave period?
Although leave periods are calculated in calendar days, weekly rest days and national and public holidays falling within that period are not counted as leave; on the contrary, they are added to the leave period. For example, an official holiday coinciding with the leave period of an employee taking 14 days’ leave is not included in the leave and is taken into account separately.
Can leave be taken before one year is completed?
The statute ties leave to the condition of one year’s service. Even so, if the parties agree, leave in the nature of an advance may be granted to the employee before one year is completed. In that case the period granted is set off against the leave to be earned in the future. Where the contract comes to an end before one year is completed, the fate of the advance leave is assessed according to the circumstances of the particular case.
Independent Legal Assessment
Annual leave disputes rarely arise on their own in practice; they come up together with claims for severance pay, overtime and wages. The element that determines the outcome in these actions is generally not the legal argument but the order of the records. An employer that keeps complete signed documents showing that leave was granted is in a strong position, whereas an employer that keeps no records is often unable to discharge the burden of proof.
On the employee’s side, the most frequently encountered error is the assumption that a leave claim may be made while the contract is continuing. As this claim falls due only upon termination, the correct determination of the periods and of the date of termination is decisive in preventing a loss of rights.
In a particular file, the following headings must be addressed as a priority:
- Establishing which periods are deemed to have been worked in the calculation of length of service, separating out unpaid leave and instances of suspension
- Aggregating the periods of service where there has been a transfer of the workplace or work at different workplaces of the same employer
- Drawing up the signed leave forms and the leave register in the proper form from the outset
- Establishing by documents that the uninterrupted 10-day block was actually granted
- Calculating leave pay on the basis of the gross basic wage and assessing separately the nature of regular premiums
- Supporting, in an allegation of termination for just cause, the fact of long-term non-granting with written requests
Independent Legal provides advisory and litigation services throughout the process in disputes arising from individual labour law, from establishing the order of leave records to the conduct of actions for employment claims.