The concept of transfer of the workplace is regulated by Article 6 of the Turkish Labor Law No. 4857 (“TLL”). The relevant article is evaluated under the title of “Transfer of the workplace or a part” and according to the provision;

In other respects, the concept of transfer of the service relationship is regulated in Articles 428 and 429 of the Turkish Code of Obligations No. 6098 (“TCO”). While the Article 428 is regulating the transfer of the workplace, the Article429 is regulating the transfer of the sole service contract.

Although often confused in practice, the transfer of employment contracts within the scope of the transfer of workplace and the transfer of the employment contract solely, which are different concepts, have separate regulations and procedures.

Articles 205 and 429 of the TCO regulate in detail the general transfer of contracts and the transfer of employment/service contracts. As a short description; the transfer of the employment contract solely requires a unique tripartite agreement between the transferee and transferor employers and the employee. In order to realize this situation, it is necessary to sign an employment transfer agreement between the transferor and transferee employers and the employee simultaneously, or to obtain the written consent of the employee to the transfer agreement established between the employers. Considering the importance, while the consent of the employee is sought in the transfer of the employment contract, the consent of the employee is not sought in the transfer of the workplace. Because in the transfer of the workplace, it is not only the employment contract of the employee that is subject to the transfer, but also the workplace itself. When the workplace or a part of the workplace is transferred to a third party based on a legal transaction, the employment contracts existing in the workplace or a part of it on the date of transfer are transferred to the transferee together with all rights and obligations.

Pursuant to Article 428 of the TCO;

The provisions of both laws are explicitly designed to protect the employee against the employers. The regulations consider the workplace together with its employees as a whole during the transfer phase and aim to protect the rights of the employees to the highest degree. As a result, it has been legally established that no agreement can be reached by changing and/or reducing the rights of the employees in the transfer agreement in any way to the detriment of the employees.

On the other hand, it is also stated that the transferee employer may use the termination rights necessitated by economic and technological reasons or changes in work organization, or the immediate termination rights of employees and employers arising from just cause. Importantly, it is not possible to terminate the employment contract by the employer solely due to the transfer. Both the transferor employer and the transferee employer must make the employment contracts existing in the workplace or a part of the workplace on the date of transfer, together with all rights and obligations, the subject of the transfer.

Another right that aims to protect the employee in the event of a transfer of a workplace or a part thereof is the right to be based on the date of the beginning of the employee's employment contract with the transferor employer. The rights based on the employee's length of service consist of (i) severance pay, (ii) notice pay, (iii) annual leave periods and payments. In addition, the transferee employer will be jointly and severally liable as of the date of transfer for the rights that the employee deserves but has not been paid to him/her, such as overtime and monthly receivables that have arisen and/or become due on the date of the transfer of the workplace.

As clearly stated by the TLL, “The transferee employer is obliged to act according to the date on which the employee started working for the transferor employer in the rights based on the length of service of the employee. In the event of a transfer in accordance with the above provisions, the transferor and transferee employers shall be jointly liable for the debts arising before the transfer and due for payment on the date of transfer. However, the responsibility of the transferor employer for these obligations is limited to two years from the date of transfer”.  Pursuant to the 6. Article of the Labor Law, the transferor employer and the transferee employer are jointly and severally liable for the notice pay, annual leave pay and overtime wages arising until the date of transfer of the workplace, and this period is limited to two years from the date of transfer for the transferor. It is so clear that the transferor employer is not liable for the labor receivables arising from the employment relationship after the date of transfer and mentioned above. In this case, the transferee employer will be solely liable for the labor receivables such as monthly wages, severance pay, notice pay, annual leave pay, overtime pay, etc. belonging to the period after the transfer.

The limitation of joint and several liability for a period of 2 years does not apply to severance payments. Pursuant to the legal provision regulating severance pay, there is no two-year time limit for severance pay. Pursuant to Article 14 of the Abolished Turkish Labor Law No. 1475("Abolished Law"), which is still in force;

Since the Abrogated Law does not set any time limit for severance pay, the liability of the transferor employer continues jointly and severally with the transferee employer indefinitely. Severance pay should be calculated for the entire period before and after the transfer of the workplace, but the transferor and transferee employers are held liable only for the severance pay accrued for their respective periods. While calculating the transferor employer's share of responsibility in terms of severance pay, the last gross wage of the employee on the date of transfer should be taken into account.

As a result, pursuant to the provisions of the law, when the workplace or a part of the workplace is transferred to another employer based on a legal transaction, the employment contracts existing in the workplace or a part of it on the date of transfer shall be transferred to the transferee together with all rights and obligations. In case of transfer of the workplace, the transferor and transferee employers are jointly and severally liable for severance pay for an indefinite period of time, and for the other labor receivables for two years as a rule, and the provisions to be applied according to the types of receivables and the form of transfer may be different.