Occupational health and safety lies at the centre of labour law as the body of rules intended to protect the employee against the hazards to which they may be exposed while performing their work. Preventing occupational accidents and occupational diseases is not merely a matter of safeguarding individual health; it is also decisive for establishing a sustainable and safe working environment in the workplace.
The limits of the employer’s obligation to protect and supervise the employee are drawn in detail by the Occupational Health and Safety Act No. 6331 above all, as well as by Labour Act No. 4857 and Article 417 of the Turkish Code of Obligations No. 6098. Taken together, this body of legislation imposes on the employer the duty to identify hazards in advance, to put the necessary technical and administrative measures into effect, and to inform and train employees.
Below we examine in detail the employer’s core duties in this field, the legal texts on which they rest, and the consequences encountered in practice where those obligations are breached.
Concept, Purpose and Legal Basis
Occupational health and safety is the body of technical and legal measures ensuring that the employee is protected against hazards of a physical, chemical, biological and psychosocial nature that may be encountered in the workplace. The purpose pursued by these provisions is to prevent the occupational accidents and occupational diseases that may arise in working life, to secure the health of employees and to create a safe working environment in workplaces.
Occupational Health and Safety Act No. 6331
The framework text in this field in Turkish law is Act No. 6331. Since it entered into force in 2012, it has formed the basis of an integrated structure directed at protecting the health and safety of employees.
The Act sets out its own purpose as the establishment of occupational health and safety in workplaces, the improvement of existing health and safety conditions, and the regulation of measures directed at preventing occupational accidents and occupational diseases.
Art. 417 of the Turkish Code of Obligations No. 6098 and the Duty of Care
The second fundamental basis in this field is the duty of care laid down in Article 417 of the Turkish Code of Obligations No. 6098.
The employer’s liability cannot therefore be attributed to a single text. The obligation arises both from Act No. 6331 and from the duty of protection and care inherent in the nature of the employment contract.
Core Obligations Incumbent on the Employer
Principal Areas of Obligation
The employer is required to put into effect all measures necessary to protect the health and safety of employees. This duty is a reflection not only of Act No. 6331 but also of the duty of care regulated in Art. 417 of the Turkish Code of Obligations No. 6098.
The scope of the obligation is not confined to the response following an accident; the principal emphasis lies on taking precautions in advance so that accidents and occupational diseases do not occur at all. The employer is therefore expected to identify situations capable of putting employees’ health at risk and to take the steps required to eliminate them.
The core duties may be gathered under four headings. The first is the duty to protect and supervise the employee; this duty entails taking the necessary measures and implementing practices that will prevent employees from suffering harm. The second heading is the creation of a safe working environment; the machinery, equipment and working methods used in the workplace must be arranged so as not to endanger the employee’s health. Third, the employer is obliged to take all occupational health and safety measures appropriate to the nature of the work performed and to the particular conditions of the workplace. The final heading is organisation and supervision: it is not enough for measures merely to have been taken, since their implementation and their inspection at regular intervals are also the employer’s responsibility.
Ensuring That a Risk Assessment Is Carried Out
One of the employer’s most critical duties in this field is to ensure that a risk assessment is carried out in the workplace. Article 10 of the Occupational Health and Safety Act No. 6331 imposes on the employer the obligation to identify hazards both present within the workplace and capable of arising from outside it, and to measure the effects those hazards will have on employees.
The function of the risk assessment is to render potential hazards visible before they materialise and thereby to allow precautions to be taken accordingly. The risks identified as a result of the assessment must be eliminated and, where that is not possible, measures reducing the risk to a minimum must be brought into operation.
This exercise is not a one-off procedure. Where working conditions change, where new equipment is introduced into the workplace or where an occupational accident occurs, the risk assessment must be renewed.
Provision of Occupational Health and Safety Training
It also falls to the employer to provide the training required for employees to carry out their work in an informed and safe manner. This obligation has been expressly regulated in Article 17 of Act No. 6331.
The content of the training covers the risks the employee may encounter in the workplace, the safety measures they must take and the steps to be followed in an emergency. This information must be shaped according to the work the employee is to perform and the risks particular to the workplace.
The training duty is not limited to the moment work commences. Training must also be provided where the employee undergoes a change of duties, where new equipment is brought into use or where a different technology is adopted.
A complete failure to provide training is one of the principal factors capable of leading to a finding that the employer was at fault in an occupational accident that has occurred. It is therefore important that training be repeated at regular intervals and documented on each occasion.
Supply of Personal Protective Equipment
The supply of the personal protective equipment required to protect employees from occupational diseases and occupational accidents falls to the employer. That duty is among the core responsibilities under Act No. 6331.
Depending on the type of work, it may be necessary to provide the employee with a helmet, protective goggles, gloves, safety footwear, a mask and similar equipment. It is the employer’s duty to supply this equipment to the employee free of charge and to ensure that it is used properly.
The employer’s duty does not end with delivery; it must also be guaranteed that the equipment supplied is fit for the work, safe and in usable condition. The equipment must therefore be maintained and replaced where necessary.
A complete failure to supply protective equipment, or a failure to ensure that the employee uses it, is treated as among the factors aggravating the employer’s liability in the event of an occupational accident.
The Duty of Supervision and Monitoring
Ensuring that the measures taken are actually implemented, and inspecting this on a regular basis, is likewise among the employer’s obligations. It is not regarded as sufficient for measures to remain on paper; they must be effectively implemented on site.
The employer is expected to monitor whether employees are acting in accordance with occupational health and safety rules and, where necessary, to bring warning and inspection mechanisms into operation. Checking that the machinery and equipment used in the workplace are being operated safely falls within the same scope.
Where the duty of supervision and monitoring is not discharged, the conclusion may be reached that the employer was at fault in accidents occurring in the workplace. The implementation of the precautions taken must therefore be monitored on a continuous basis.
Employer Duties Where an Occupational Accident Occurs
Where an occupational accident occurs, the employer comes under a number of obligations owed both to the employee and to public authorities. These steps are decisive for limiting the consequences of the accident and for the proper discharge of legal responsibility.
Provision of Medical Assistance
At the moment of the accident, the employer’s first duty is to ensure the injured employee’s access to medical care. The employer is expected to get the employee to the nearest health institution and to ensure that the necessary treatment is administered.
This obligation is a natural continuation of the duty to protect and supervise. A failure by the employer to exercise the requisite diligence at this stage may both cause the harm sustained to increase and aggravate the employer’s legal liability.
Notification of the Accident to the SGK
The employer is obliged to notify an occupational accident that has occurred to the Social Security Institution (SGK). The Social Insurance and Universal Health Insurance Act No. 5510 prescribes for this notification a period of not more than three working days from the date on which the accident occurred.
Where the notification is not made within that period, an administrative fine may be imposed on the employer.
Administrative Sanctions for Breach
Where occupational health and safety obligations are not met, various administrative sanctions arise under Act No. 6331. The function of these sanctions is to secure the health and safety of employees and to direct employers towards taking the necessary measures.
In the event of a breach of the legislation an administrative fine may be imposed on the employer, and where the conditions are satisfied a far more serious measure in the form of the suspension of work may also come into operation.
Administrative Fines
Where obligations are not discharged, an administrative fine may be imposed on the employer. Act No. 6331 provides for separate sanctions in respect of many of the duties placed on the employer.
The principal situations in which these fines arise include a complete failure to carry out a risk assessment in the workplace, a failure to provide employees with occupational health and safety training, a failure to supply the necessary personal protective equipment, a failure to operate occupational health and safety services, and a failure to notify an occupational accident that has occurred within the prescribed period. The amount of the sanction varies according to the nature of the breach; in some cases a separate fine may be imposed for each month the breach continues.
Suspension of Work
Where there is a serious and imminent danger to the lives of employees, it may be decided that activity be suspended throughout the workplace or in the section in which the danger is present.
This decision is issued following inspections by the Ministry of Labour and Social Security and remains in force until the conditions threatening the lives of employees have been remedied.
Where the employer takes the requisite precautions and eliminates the danger, the suspension decision may be lifted. Conversely, if the necessary measures are not taken, it may not be possible to continue activity in the workplace.
Civil Consequences of Breach
Where the employer fails to meet their obligations and an occupational accident occurs as a result of that failure, civil liability also arises. If the employee has been harmed or has lost their life as a result of the accident, an action for damages may be brought against the employer.
At the root of liability in damages arising from occupational accidents lies the employer’s breach of the duty to protect and supervise. Within that framework, the employer may be held liable to make good the harm that has arisen.
Pecuniary Damages
Where the employee has been injured as a result of the accident, pecuniary damages may be sought to make good the economic losses sustained. Within the scope of this claim, the harm arising from the reduction or complete loss of working capacity, expenditure incurred on treatment, and losses of income sustained by reason of temporary or permanent incapacity for work may be asserted.
Non-Pecuniary Damages
Where the employee has suffered bodily or psychological harm by reason of the accident, non-pecuniary damages may be claimed in respect of the pain and distress endured.
The aim of non-pecuniary damages is not to make good the harm in its entirety but to alleviate to some degree the suffering endured by the injured party. In determining the amount, the court has regard to the gravity of the incident, the parties’ respective degrees of fault and the manner in which the incident occurred.
Damages for Loss of Financial Support
Where the occupational accident has resulted in the employee’s death, the relatives who benefited from their support may claim damages for loss of financial support.
This head of claim is directed at making good the harm arising from the loss of the financial contribution the deceased would have provided to their family had they survived. The right to claim is most often accorded to the spouse and children and, in certain cases, to the parents.
For further detail on this subject, our note entitled Actions for Pecuniary and Non-Pecuniary Damages Arising from Occupational Accidents may be consulted.
Criminal Liability for Breach
Where obligations are not discharged and an occupational accident occurs as a result, criminal liability may also arise. If the accident has caused an employee to be injured or to die, an investigation is conducted within the framework of the Turkish Penal Code No. 5237 according to the nature of the incident.
Within that framework, proceedings may be conducted against the employer and the persons who have assumed responsibility in the workplace in respect of the following offences.
Negligent Bodily Injury
Where the employee is injured as a result of the accident, an investigation may be commenced against the employer or those responsible who failed to take the requisite occupational health and safety measures for the offence of negligent bodily injury.
In respect of this offence, which appears in Article 89 of the Turkish Penal Code No. 5237, a term of imprisonment or a judicial fine may be imposed on those who cause a person to be injured by acting contrary to the duty of care and diligence.
Causing Death by Negligence
Where the accident results in the employee’s death, proceedings may be conducted against those responsible for the offence of causing death by negligence.
Article 85 of the Turkish Penal Code No. 5237 provides for a term of imprisonment in respect of those who cause the death of a person by negligence. Shortcomings such as a failure to take precautions, a failure to carry out a risk assessment or a failure to conduct the necessary inspections may lay the ground for criminal liability to arise.
For detailed information on this subject, our note entitled The Offence of Causing Death by Negligence and Its Penalty – Turkish Penal Code Art. 85 may be consulted.
The Conduct of Criminal Proceedings
Where an occupational accident occurs, the incident is as a rule investigated by the public prosecutor’s office. How the accident occurred, what precautions ought to have been taken in the workplace and the parties’ degrees of fault are established through court-appointed expert examinations.
If it is established at the conclusion of the investigation that the employer or those responsible were at fault, criminal proceedings may be brought and criminal sanctions may be imposed at the end of the trial.
Independent Legal Assessment
Occupational health and safety obligations are in practice most often viewed as a compliance cost; yet a breach of these obligations produces consequences simultaneously along three separate lines — administrative fines, damages and criminal proceedings. In an occupational accident file, the employer’s defence rests far less on their conduct at the moment of the accident than on the documentary infrastructure they put in place months, or even years, beforehand.
For that reason we recommend that the occupational health and safety system in an undertaking be established not as a paper record achieving formal compliance with the legislation, but as an organisation that functions and is monitored. What is decisive in court-appointed expert examinations is not whether the precaution exists on paper, but whether it is actually implemented on site.
In practice, the following headings in particular should be observed:
- Keeping the risk assessment up to date and renewing it where equipment, processes or the layout change
- Documenting and archiving training together with its content, date and participant details
- Not merely issuing personal protective equipment to employees but also inspecting and recording its use
- Making occupational accident notifications in full within the three-working-day period and systematising the monitoring of that period
- Reducing inspection and warning mechanisms to writing and recording identified breaches in a formal report
- Structuring the allocation of responsibility in workplaces with a sub-employer so that it is consistent with both the contract and the actual organisation
Independent Legal advises employers and employees, and conducts litigation on their behalf, in occupational health and safety compliance processes and in damages and criminal files arising from occupational accidents.