EXTENDED SUMMARY

Freedom of expression is a fundamental right recognised as an indispensable element of a democratic society and an important part of one’s development. It is important for the worker, as an individual, to be able to express his/her views on political, cultural and social areas at the workplace where he/she spends a significant part of his/her life in terms of personal development, and to be able to share his/her views on working conditions affecting his/her life or problems related to these, both in the workplace and outside the workplace. Even if these views are unpleasant, provocative, striking, thought-provoking, or harsh, they are considered within the scope of freedom of expression.

However, freedom of expression is not unlimited. In the face of the employer’s rightful interest, under the worker’s duty of loyalty, the worker’s freedom of expression may sometimes be restricted.

When the doctrine views and judicial decisions are examined, it can be seen that these limitations, which are generally related to the criticism of the employer / business organization and the whistleblowing, can sometimes be caused by the political thoughts that are not related to the workplace, which the worker shares via social media outside the workplace.The aim of this study is to determine the criteria on which the freedom of expression of the worker and the limitations on this freedom are based and to evaluate the interferences with the worker’s freedom of expression, especially in social media, in the light of judicial decisions.

In this balance of interests, the nature of the job and the position of the worker also determine the scope of the worker’s freedom of expression. The issues such as the context of the expressions, the expanse of the audience to which the expression was directed, the seniority of the worker, whether he/she had acted similarly before, should also be addressed in determining whether the interference with freedom of expression is proportionate. In this respect, the limitations to be imposed on the freedom of expression of the worker should not deter the worker from exercising his/her freedom of expression and the right to complain. The Constitutional Court, in its proportionality control when assessing whether the interference with the freedom of expression of the worker is necessary in a democratic society, evaluate the criteria such as the motive of the applicant when he/she made a statement within the context of the concrete case, the legal and factual basis of the statement, the interpretations of the statement, the effects on the employer and the sanction the applicant was subjected to.

Whether in the workplace or out of the workplace, the worker can express his/her opinion individually or collectively, and even express his/her views on the employer/enterprise. However, the duty of loyalty to the employer may impose some limitations on his/her freedom of expression.

Workers can express the problems they encounter in the workplace, their thoughts and criticisms about the management of the enterprise, in order to find solutions for these issues. The worker may report these views to his/her employer or supervisors or may prefer to share these views with his/her colleagues. Again, considering that the problems in the workplace can be solved instantly with public pressure, workers also express their criticisms about their employer and the business in social medias. Basically, it is not possible for the employer to interfere with the freedom of expression remaining in the private life of the worker (outside of the workplace). However, in terms of the worker’s duty of loyalty, in his/her criticisms made through social media, the freedom of expression of the worker may conflict with the legitimate interests of the employer and the customers of the enterprise. Nevertheless, when considering the freedom of expression of the worker, the statements about the employer and workplace and the political statements should be handled differently.

Criticisms that do not contain insults and create negative effects on the employer’s reputation or the production in the workplace, whether on social media or in the workplace, should be accepted within the limits of criticism and protected within the freedom of expression. In case of criticism which contains insults, assaults and threats, harms the enterprise and has a negative effect on production, the worker may face disciplinary sanction, including termination of the employment contract with just cause or valid grounds.

The worker may also express the unlawful and unethical actions and transactions of the employer that concern the public or third parties within the freedom of expression. However, in order not to violate the duty of loyalty while exercising this right, as stated by the ECHR, the criteria such as whether the information content is in the public interest, whether its accuracy is checked in a way that a reasonable person can do, whether the right is used in a way that causes the least harm to the employer and whether the worker is in good faith, are important. In addition, the interference with this right must be proportionate. In terms of our law, for the right of whistleblowing to be exercised healthily, it is necessary to make legal regulations, including provisions, for a certain procedure for the exercise of this right and the protection of workers exercising this right.

Being a member of a political party and participating in the political actions of this party is one area in which the employer cannot interfere. However, the fact that the political discourse and behaviours of the worker in the workplace which cause concrete negativities regarding the production in the workplace may lead to the limitation of the right.

The worker’s political statements outside the workplace are within the private life and this is also another area where the employer cannot interfere. However, these statements may exceptionally lead to sanctions other than just termination, if they cause negativities in the workplace that may affect the continuity of the work. Besides political posts on social media, political views, photos, etc., “liking” posts should also be considered within the freedom of expression.

In the interventions to the worker’s freedom of expression, the criteria such as the position of the worker, the place and the platform of the statement was made, the potential effect/prevalence of the statement, the extend of the damage caused to the employer, and the level of the sanction imposed by the employer regarding this statement should be examined in detail, regardless of private or public workplaces and the scope of the employer’s intervention should be evaluated by the courts.