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The Recruitment Process Under Turkish Law

Explore the intricacies of the recruitment process under Turkish Law, emphasizing the importance of careful selection, legal responsibilities, and the rights of both employers and candidates. Dive into a comprehensive guide on hiring in Turkey.

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It is critical to carry out the recruitment process carefully. Otherwise, problems such as the possibility of the employee’s inability to adapt, disruption of business after the wrong employee selection, and the obligations imposed on the employer during the dismissal process will put the company in a difficult situation. So, the company should clearly state the criteria for candidate selection in job adverts or job interviews and follow the steps explained below.

While employers try to find and hire the most competent employee for the vacant position, candidates also desire to achieve the career and economic power they aim for. Employees hired in job interviews without due diligence can often inflict financial losses on their employers due to customer/client dissatisfaction and a drop in sales charts. In addition, the employer may face the loss of reputation or negativities that reduce the brand value due to the damages caused by the employees to the workplace and customers.

In this context, companies apply various rules and methods for employee selection, and they often receive professional support for substantial decisions that need to be taken, such as preparing the job advert text, conducting interviews, questioning references, and evaluating proficiency tests in this process.

Employee selection criteria include the employee’s skills, motivation, sense of responsibility, intelligence, potential risk that may reflect on the company, and permanent performance. In addition, the candidate’s experience, previous performances, education, interests, physical skills, diplomas and degrees, salary conditions, personality measurements, references, how long they worked in their previous job and reason for leaving, and criminal record are the points that determine the recruitment of the candidate.

The Process of Recruitment

Identifying The Need to Recruit New Employees

The need to recruit new employees may occur for the following reasons:

• Resigns,
• Increased current workload,
• Considering and investing in human resources in the long term,
• Retirement, death, or disability,
• Changes in the company’s working systems,
• Organizational changes and in-company assignments.

The company’s executives evaluate the need for new employees, and recruitment processes are initiated with the executives’ approval.

Researching For The candidates and Job Adverts

The following methods search eligible candidates:

• Previous Candidate Applications: The CVs (resumes) of the candidates who have applied before are examined. Applications of suitable candidates are taken into consideration.
• Via Network: Unless it violates privacy policy, the qualifications sought for the new employee can be reported to the network.
• Via Intermediary Institution: If deemed appropriate, it is possible to work with expert intermediary institutions to search for candidates by receiving offers.
• Via Newspaper / Internet Announcement: An advert text is prepared and published, containing the qualifications sought for the job and the scope of the job. In this context, the qualifications sought in an employee can be listed as having work experience, knowing a foreign language, having the best manner and behavior to represent the workplace, having a good reputation in society, having a positive and constructive approach and appearance in relations, being experienced in the subject, meeting the requirements of the position.

Criteria such as having the appropriate qualifications, keeping up with the fast pace, not having a disability or illness that prevents them from performing their duty, and status of military service should be clearly stated in the job posting. Candidates who will apply for a job can submit their CVs by fax, e-mail, or by hand; they can also apply using the job application form provided.

Pre-interview

How the pre-interview will take place varies according to each company. The candidate can be interviewed by phone, or a face-to-face interview can be made with the recruiter in the company or online. In this initial interview, the company determines pre-selection with some recruitment questions.

Consideration

The CV and application forms of the candidates who are not eliminated as a result of the pre-interview and whose recruitment process is still in progress are evaluated. In this context, the candidates are examined, from their qualifications and education levels to their hobbies. Because the hobbies of the candidates can be seen as an advantage depending on the structure of the institution, as well as helping to determine the character traits of the candidates, for this reason, the candidates must prepare a realistic and full CV.

Tests

In some companies, various tests are held to define the knowledge and personality traits of the candidates. In this context, written tests and various exams on knowledge, intelligence, talent, personality, and psychology can be done.

Examples of personality and psychological tests can be listed as the California Psychological Inventory (CPI), the 16 Personality Factor (16 PF), the Hogan Personnel Selection Series, and the Minnesota Versatile Personality Inventory (MMPI). The HR Department determines test preference.

Interview

According to the results of the pre-interviews and tests, interviews are held with the candidates who pass the qualifications. In this process, mixed or stress interviews focused on measuring knowledge and getting to know the candidate can also be applied by the recruiter, HR Manager, or department manager. The questions asked in the interviews, and the interview process may vary from institution to institution. After the first interview, if necessary, a second interview can be held by the management.

Inappropriate questions directed to the candidates during the interviews may result in an invasion of the employee’s personal rights or a violation of the prohibition of discrimination. For this reason, there are some limits and obligations for employers in recruitment interviews.

• During the job interview, the candidate should not be asked questions that are not related to the job description of the staff to be recruited in the organization.
• During the interview, employers can ask the candidates their names, birthplace and birthdate, marital status, address, education info, specialization, professional experience, if they have mandatory military service or any other legal obligation.
• Employers may ask the candidates about their previous salaries during the interview. Since employees’ wages can be seen from the official records of the social security system and can be accessed through the national registration number, there is no restriction in this regard.
• During the interview, employers may ask the candidate whether they have a contractual obligation to his previous employer regarding non-compete and whether there is an unfulfilled penal clause against their previous employer. Even if the employer does not ask for it, the candidate is obliged to notify the employer of such matters.
• Employers can ask the candidate some limited questions about their assets, financial situation, debts/ credits, in general, to understand if they have a large amount of debt.
• During the interview, employers may ask questions about the candidate’s health status, whether it is related to the nature of the job or whether they have a contagious disease.
• Employers also have the right to ask female candidates whether they are “pregnant” or “whether there is a pregnancy plan in the near future“. The purpose of these questions is to plan the employer’s career and working conditions for the candidate.
• Employers cannot ask questions about the candidate’s private life during the interview. In fact, they should not ask questions that can be considered as an intervention in private life, such as “whether there is someone in their life or not“.
• Employers cannot ask candidates about their religion, denomination, political opinion, or ideology.
• During the interview, employers cannot ask candidates whether they are a member of a syndicate or whether they are considering joining one.

Checking References and Medical Examination

After the interview, information about the candidate is obtained by contacting the references specified by the candidate during the application. In addition, research can be conducted on the candidate’s past and previous work. Reference checks can be made with academic references, references from the candidate’s previous workplace, financial references such as bank records, prosecutorial records, and personal references.

Afterward, candidates are subjected to a medical examination to check their suitability for the job.

The Decision of Recruiting and Orientation Training

Finally, the recruitment decision is concluded with the joint opinion of the department and HR Department where the candidate will be recruited.

The candidate selected to be hired is notified that they have been accepted for the job, and the candidate whose starting date is notified must fully prepare the documents before starting the job. The legal employment procedures of the candidate who has prepared the documents are completed, and the employee starts to work. The personal file of the employee should be created on the same day.

Orientation and necessary training should be given to the newly recruited employees as of the day they start to work so that they can adapt to the workplace and their job in a brief time.

Legal Responsibilities of The Company in Case the Employee Is Recruited

Creating The Personal File of Employee

The personal file is created according to Article 75 of the Turkish Labor Law No. 4857. As the article says, “The employer prepares a personal file for each employee. In this file, the employer is obliged to keep all kinds of documents and records that it must arrange under this Law and other laws, as well as the identity information of the worker, and show them to the authorized officers and authorities when requested.”

Personal files preserve the most important documents that the employer can apply in case of any dispute regarding personnel and that may be requested to be presented by the Social Security Institution (SSI) officials.

Some of the documents that personal file must include can be counted as;

• Employee’s identity information and job application form,
• Contract of employment,
• Fixed-term contract with a term of one year or more team contract,
• Fixed-term employment contract of less than one year,
• Employment contracts concerning on-call work,
• “Written Document Containing Working Conditions“, which must be given to the employee within two months at the latest after the employment, if a written employment contract has not been made,
• Written approval to be obtained from the employee in the case of the establishment of a temporary employment relationship,
• Medical report,
• Certificate of residence,
• Copy of identity card,
• Criminal record,
• Family status statement,
• Document showing the cumulative tax base paid during the year,
• Bank account information,
• Certificates and documents required by the job,
• Social Security Institution employment statement,
• Military status document for male employees,
• Copy of the diploma,
• Information about blood type,
• Other documents or training certificates required as per the job requirement.

Preparing The Contract

Since the employment contract regulates the rights and obligations of the employee and the employer, the contract should be prepared and mutually signed by the employee whose employment is decided. Employment contracts can be made in various ways, depending on the job description and working style of the employee.

Indefinite-Term Employment Contract

It is the type of contract in which the business relationship is prepared without being bound by a certain period. However, if the parties wish, they can add a trial period of up to two (2) months to the contract.

A written service contract for an indefinite period is not a validity but a burden of proof. However, if the employee does not want to sign a written contract, the employer must provide the employee with a document regarding the working conditions within two (2) months.

In case of termination of employment in an indefinite-term employment contract, notice periods must be applied, and the party who does not comply with the notice period will have to pay notice indemnity. In addition, the employee who fulfills the one-year (1) requirement and meets the conditions for severance is entitled to severance pay.

Definite-Term Employment Contract

It is a type of contract made between the employer and the employee for a certain period or depending on objective conditions such as the completion of a certain job or the occurrence of a certain phenomenon. Fixed-term contracts can be renewed at most once.

Employment contracts with a fixed duration of one year or more must be in writing.

A fixed-term employment contract terminates automatically when the contract termination date comes. Since this type of contract’s expiration date is predetermined, there will be no notice periods or notice compensation.

The employment contract that has not reached the specified period may be terminated due to the rightful termination.

If the contract is terminated by the employee or the employer before the contract termination date, without a rightful termination, the parties can ask for the remaining period to be paid as compensation. In addition, the employee who fulfills the one-year (1) requirement and meets the conditions for severance is entitled to severance pay.

Part-Time Employment Contract

According to Article 63 of the Labor Law, weekly working hours are 45 hours, and employees’ employment contracts with this working time are called “full-time“. If the employee is determined to be significantly less than a comparable employee working on a full-time employment contract, then the contract is part-time. The phrase “significantly less” is defined as work done up to 2/3 of the peer work.

Therefore, the wage of an employee working under a part-time employment contract is paid in proportion to the time worked compared to a full-time employee.

On-Call Employment Contract

If the employee is needed in relation to their work, it can be agreed in writing between the parties that the act of performing the job will be performed. This form of employment contract is a part-time contract based on on-call work.

One of the points that should be considered in contracts based on on-call work is that the parties clearly determine how many hours the employee will work for what period. If not determined, in accordance with the legal regulation, the employee will be deemed to have worked 20 hours per week.

Even if the employee is not employed during the period specified for on-call employment, they are entitled to wages.

Unless otherwise specified, the employee must be on call at least four days in advance and must work at least four hours on each call.

Working Remotely

It is a type of contract established based on the employee’s fulfillment of the act of doing business with technological communication tools at home or outside the workplace.

Provisions regarding the definition of the job, how to do the work, the duration and place of the work, the aspects regarding the payment of wages, the work tools provided by the employer, the equipment and obligations regarding their protection, the employer’s communication with the employee, the general and special working conditions should be addressed in the contract.

Unless otherwise agreed in the employment contract, the employer must provide the necessary materials and work tools for remote employees.

Choosing The Occupational Code

The Social Security Institution requires that the occupation code of each employee be notified. For this reason, the institution should be informed accurately about the job the employee will work in, and attention should be paid to the stated wage.

Approval For Overtime Work

Overtime is work that exceeds forty-five hours per week. In addition, the total of overtime working hours cannot exceed two hundred seventy (270) hours in a year.

Written consent of the employee is required to work overtime. According to the Labor Law and the precedent Supreme Court Decisions, the employer cannot force the employee to work overtime, since overtime work is subject to the employee’s approval.

Previous practices required the approval letter to be renewed every year. However, as a result of the amendment made in the relevant regulation on 25/08/2017, it is sufficient to take it during the contract or when there is a need for overwork.

On the other hand, the employee who does not want to work overtime may withdraw their consent by giving a written notice to the employer 30 days in advance. In this case, the employee cannot be forced to work overtime.

Rights and Obligations of The Parties Before The Contract is Signed

Mutual rights and obligations arise between the employer and the candidate even before establishing an employment contract. These obligations, which are called general behavioral obligations, are important in terms of establishing a relationship of trust between the parties. The good-faith principle in Article 2/1 of the Turkish Civil Code constitutes the purpose of the general behavioral obligations.

Therefore, the parties must abide by the good faith and show the necessary attention and care in all kinds of business/transactions and actions before the contract.

In this context, the parties are required to comply with the good-faith principle, to inform and enlighten each other fully and completely in terms of the content and conditions of the contract to be concluded, to show the necessary care and attention not to harm each other’s personality and property values, and to act by their protection obligations. If one of the parties violates these obligations during the pre-contractual negotiations, they will be responsible for the damages that may arise.

On the other hand, if the employer asks the candidate questions during the interviews by the purpose and the Law, the candidate is obliged to make a truthful statement.

If the questions asked by the employer to the candidate in the pre-contractual negotiations are against the purpose and the Law, and if the candidate leaves these questions unanswered, the candidate may claim that they have suffered damage and ask for compensation against the employer. Even if the candidate suffers a loss due to the employer’s collection of information from the former employer of the candidate and using it against them, the candidate can ask for compensation.

In addition, the sentence in paragraph 3 of Article 5 of the Labor Law, “The employer cannot directly or indirectly treat a worker differently in the conclusion of the employment contract, in the creation, implementation, and termination of the employment contract, due to gender, or pregnancy, unless biological reasons or reasons related to the nature of the work oblige“.

In the process of concluding the employment contract, the Law has brought comprehensive and detailed regulations on the fact that no different transactions can be made directly or indirectly due to gender or pregnancy unless biological or job-related reasons make it compulsory.

Therefore, before the employment relationship starts, it is legally protected that the employer cannot avoid making an employment contract with the employee just because of pregnancy, without a valid reason. Likewise, violating the prohibition of discrimination in terms of gender in the recruitment process will constitute a violation of the Law.

In case of violation of the prohibition of discrimination, before, during, or after the employment relationship is established or when the business relationship is terminated, the person who has been discriminated against can apply to the Human Rights and Equality Institution of Turkey.

In the reconciliation negotiations held after the acceptance of this application, if the parties fail to reach a compromise, an administrative fine may be imposed on those who discriminate, considering the severity of the effects and consequences of this violation, the economic situation of the perpetrator, and the aggravating effect of multiple discrimination.

Article 122 of the Turkish Penal Code states that “Anyone who prevents a person from being hired… because of hatred stemming from differences in language, race, nationality, color, gender, disability, political opinion, philosophical belief, religion or sect… punishable by imprisonment of up to one year.” The Law regulates that the employer is obliged not to discriminate in recruitment and envisages criminal sanctions in case the employer discriminates.

It must be stated that no action can be taken against disabled people at any stage of the job application and recruitment process. The obligations of employers in this regard are regulated by the Law. In Article 14 of the Law on Disabled Persons and Amending Certain Laws and Decrees:

“In recruitment, no discriminatory practices can be made against the disabled in any of the stages from job selection, application forms, selection process, technical evaluation, proposed working hours and conditions. Employees with disabilities cannot be treated differently from other persons about their disability in a way that will result in detrimental consequences.”

Conclusion

The recruitment process must be carried out carefully. Otherwise, problems such as possible inability to adapt, work disruption, and the obligations imposed on the employer during the dismissal process will put the company in a tough situation after the improper employee selection.

For this reason, the recruitment stages must be applied meticulously, and critical decisions need to be taken at stages such as preparing the text of the job posting, conducting interviews, questioning references, and evaluating proficiency tests.

After this process, the candidate who has decided to be hired is notified that they have been accepted for the job, and the candidate whose starting date is notified must fully prepare the documents notified to them before starting the job. In addition, an employment contract regulating the rights and obligations of the employee and the employer should be prepared and mutually signed.

Different types of employment contracts can be made, such as indefinite-term, fixed-term, part-time, on-call, and remote work, depending on the job description and working style of the employee to be employed. Another important obligation of the employer is to notify the Social Security Institution of which type of job the employee works accurately.

During this process, the parties are obliged to comply with the good-faith, to inform and enlighten each other fully and completely in terms of the content and conditions of the contract to be concluded, to show the necessary care and lookout not to harm each other’s personality and property values, and to act by their protection obligations. In this context, one of the parties will be responsible for the damages that may arise if they act in breach of these obligations during the pre-contractual negotiations.

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References

• BULUT PENEZOĞLU Özlem , NAMAZCI ŞENER Yağmur, ÇOĞ Ayşe Burçak, “İşe Alım Sürecinde Ayrımcılık Yasağı” (mondaq.com – Access date: 16.06.2023).
• ÇALIŞKAN, Ayşe “İşe Alım Sürecinde Tarafların Birbirlerine Karşı Sergiledikleri Etik Dışı Davranışlar: Sakarya İlinde Bir Araştırma”, Master Thesis, 2019.
• GEÇER, Bekir “İşe Alım Sırasında Yapılan Mülakatlarda İşveren Yükümlülükleri” (iskanunu.com – Access date: 16.06.2023).
• GÜRKAN, Elif Seda “Türk Hukukunda İşverenin İşe Alım Görüşmelerinde Aday İşçiye Soru Sorma Hakkının Sınırları”, Maltepe Üniversitesi Hukuk Fakültesi Dergisi, 2017.
• ILGIN, Serap “İşe Alım Süreci Nedir?” (istanbulbogazicienstitu.com – Access date: 16.06.2023).
• OZAN ÖZPARLAK, Başak “Türk İş Hukukunda İşe Alım ve İş Sözleşmesinin Kurulması”, Doctoral Thesis, 2013.
• Turkish Labor Law No. 4857.

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