Suspension of Employment Contract in Labor Law

“Suspension of an employment contract,” shaped by the principle of ensuring the continuity of the employment relationship, the fundamental purpose of labor law, is a technical situation in which the employee is temporarily unable to fulfill their primary obligations, such as performing work and the employer being unable to pay wages, while preserving the legal bond between the parties. The legal system, which views contract termination as an “ultima ratio,” aims to preserve the employee’s income and job security, and the employer’s skilled human resources, by suspending the employment relationship rather than terminating it entirely, in cases such as the employee’s illness, pregnancy, military service, compelling reasons, or mutual agreement of the parties.

1. CONCEPTUAL FRAMEWORK

1.1. Job Security and the Principle of Continuity of Contract

The fundamental paradigm of contemporary labor law is to protect the stability of the employment relationship and to preserve the employee’s income security for as long as possible. Unlike the strict “impossibility of performance” rules of classical Law of Obligations, Labor Law views the termination of the contract as a “last resort” (ultima ratio), a requirement of the social state principle. In this context, the institution of “Suspension of the Employment Contract” is a vital legal mechanism developed to eliminate the negative economic and social consequences of termination, temporarily protecting the employee from the risk of unemployment and the employer from the loss of qualified workforce and compensation burdens.

Technically, the suspension of an employment contract means that the employee refrains from performing the duty to work and the employer refrains from performing the duty to pay wages for a temporary period, either by the will of the parties or due to compelling reasons arising from the law, while the legal bond (the contract) between the parties remains intact. This institution functions as an alternative to termination, which is the final and most severe sanction ending the employment relationship. The employment relationship may be shaken by various reasons stemming from the parties themselves or external factors; however, the legal order activates the “suspension” valve to prevent this tremor from turning directly into destruction (termination).

1.2. Legal Nature and Elements of the State of Suspension

Suspension of the employment contract is not the termination of the contract, but the temporary cessation of the performance of primary obligations. The legal nature of this situation is defined in the doctrine as an “obstacle to performance.” For a state of suspension to exist, three basic elements must coexist:

Existence of an Obstacle to Performance: A factual or legal situation must arise that prevents the employee from working or the employer from employing the worker. This obstacle may stem from a biological reason such as the employee’s illness, a collective action such as a strike, or market conditions such as an economic crisis.
Element of Temporariness: The state of suspension is temporary by nature. If the obstacle to performance becomes permanent (e.g., total disability of the employee or complete closure of the workplace), the state of suspension ends and results in termination. As emphasized in Turkish legal doctrine and Court of Cassation practices, the suspension can only continue for a temporary period. If the period determined by the parties or a reasonable period is exceeded, the actions of “non-payment of wages” and “non-application of working conditions” give rise to the right of immediate termination in favor of the employee.
Continuation of the Contractual Bond: Although primary obligations (work and wages) are paused during the suspension, secondary obligations such as the duty of loyalty, confidentiality, and non-competition prohibition continue to exist. If the employee violates the duty of loyalty by working for another employer during the suspension period, the employer may terminate the contract for just cause.

1.3. Legal Basis: Relationship between Labor Law and Code of Obligations

The suspension of the employment contract is regulated in a scattered manner in various articles of the Labor Law No. 4857 (Articles 24, 25, 31, 55, 74, etc.). However, in cases where there is no provision in the Labor Law, the provisions of the Turkish Code of Obligations (TBK) No. 6098 regarding the service contract come into play. Particularly, TBK Art. 409 functions to fill the gaps in the Labor Law by regulating the employer’s obligation to pay wages (albeit for short periods) in cases where the employee cannot work due to reasons such as illness or military service without their own fault.

2. SUSPENSION CAUSES ARISING FROM THE EMPLOYEE

Situations arising from the biological or social condition of the employee that make the performance of the work impossible constitute the widest category of suspension reasons.

2.1. Health Reasons (Sickness and Accident) and the “Notice Period + 6 Weeks” Rule

If an employee falls ill or suffers an occupational accident/disease, it becomes objectively impossible for them to perform their duty to work. In this case of impossibility, the employment contract is suspended for the duration of the medical report. However, the extent to which this suspension period is protected under job security is tied to a definitive mathematical formula by Article 25/I-b of the Labor Law.

2.1.1. Protected Suspension Period: Criteria of Exceeding Notice Period by Six Weeks

The legislator has not kept the employer’s obligation to endure unlimited. According to Labor Law Art. 25/I-b, if the employee’s absenteeism due to illness or accident exceeds the notice period determined according to the employee’s seniority in Article 17 by six weeks, the employer’s right to immediate termination for just cause arises. When interpreted a contrario(proof by contrary), this regulation leads to the following result: As long as the report period does not exceed the “Notice Period + 6 Weeks” limit, the employment contract is suspended, and the employer cannot terminate for just cause based on health reasons.

These periods are calculated according to the employee’s seniority as shown in the table below:

Length of Service (Seniority)	Notice Period (Weeks)	Protected Suspension Period (Notice + 6 Weeks)	Moment Employer’s Right to Just Termination Arises
Less than 6 months	2 Weeks	8 Weeks	The day following the expiry of the 8th week
6 months – 1.5 years	4 Weeks	10 Weeks	The day following the expiry of the 10th week
1.5 years – 3 years	6 Weeks	12 Weeks	The day following the expiry of the 12th week
More than 3 years	8 Weeks	14 Weeks	The day following the expiry of the 14th week

Cancer and Long-Term Illnesses: Although it is debated whether these periods apply to illnesses requiring long treatment such as cancer, tuberculosis, or mental illness, the 9th Civil Chamber of the Court of Cassation is of the opinion that the “Notice + 6 Weeks” rule should be applied absolutely, regardless of the nature of the disease. If this period is exceeded, the employer may terminate the contract by paying severance pay (but without paying notice pay).

2.1.2. Distinction Between “Frequent Illness” and “Long-Term Report”

The fine line between suspension and termination deepens in Court of Cassation precedents with the distinction between “frequently taking reports” and “taking a continuous long report.”

Continuous Long Report: These are single piece or consecutive (uninterrupted) reports that exceed the “Notice + 6 Weeks” period mentioned in the table above. In this case, the employer can terminate for Just Cause (Art. 25/I). Taking a defense is not strictly required (However, the Constitutional Court and recent Court of Cassation decisions recommend taking a defense due to the principle of proportionality).
Frequent Illness: If the employee takes frequent reports at intervals (e.g., 3-5 days every month) in a way that does not exceed the notice period, this situation is evaluated under Article 18 (Valid Reason), not Article 25 (Just Cause). If the employee’s frequent illness disrupts the workflow in the workplace and places an additional burden on other employees, the employer may terminate for a valid reason arising from the “employee’s incompetence.” Critical Point: In termination for a valid reason, taking the employee’s defense is mandatory. Termination without taking a defense is invalid and results in reinstatement.

2.2. Pregnancy and Maternity

The biological condition of the female employee is subject to a special suspension regime due to the principle of positive discrimination. Pursuant to Labor Law Art. 74, it is essential that female employees are not employed for a total of sixteen weeks, eight weeks before birth and eight weeks after birth. In case of multiple pregnancies, two weeks are added to the prenatal period. During these periods, the employment contract is suspended by law.

Right to Unpaid Leave: Upon request, a female employee is granted unpaid leave for up to six months after the completion of the sixteen-week (or eighteen-week in multiple pregnancies) period. This six-month period is also a period in which the employment contract is suspended. This leave request is not subject to the employer’s discretion; the employer is obliged to grant it when the employee requests it.

2.3. Military Service (Compulsory and Paid)

Military service, which is a constitutional duty for male employees, is a typical example of the suspension of the employment contract.

2.3.1. Compulsory Military Service and Leaving Job

When an employee leaves work to fulfill his compulsory military service duty, the employment contract is generally considered suspended. However, in Turkish practice, due to the length of military service (6 months or 12 months), the contract is usually terminated by paying the employee severance pay. Nevertheless, the Law protects reinstatement upon return from military service (Art. 31). If the employee applies for work within 2 months upon return from military service, the employer is obliged to hire that employee primarily for the vacant position immediately, or for the first position that becomes vacant.

2.3.2. Paid Military Service (Bedelli): Suspension or Termination?

In the application of paid military service (21 days or short periods changing periodically), the status of the employment contract is controversial. Judicial decisions and doctrine tend to evaluate this period as a suspension state similar to unpaid leave, due to the short duration of paid military service and its nature as a “duty”. The employee does not receive wages during this period but continues his job from where he left off at the end of the military service. The employer’s dismissal of the employee for this short period may be considered an abuse of right.

2.4. Detention and Arrest

The detention of an employee by law enforcement officers or their arrest by the court due to suspicion of a crime makes the performance of work impossible. Pursuant to Labor Law Art. 25/II-f, in case of the employee’s detention or arrest, the absenteeism must exceed the notice period in Article 17. The employment contract remains suspended until this period expires, and the employer cannot terminate it.

Important Distinction (Workplace vs. Non-Workplace Crimes):

Crime Committed Outside the Workplace: If the employee gets involved in a fight outside working hours and is arrested, the employer must wait for the notice period (Suspension State). When the period expires, they can terminate for just cause.
Crime Committed in the Workplace: If the employee commits a crime in the workplace, such as damaging the employer’s property or harassing a colleague, and is arrested; the employer may terminate the contract immediately without waiting for the notice period, pursuant to Art. 25/II (Violation of the rules of morality and good faith). The suspension period does not apply here.

3. FORCE MAJEURE AND EXTERNAL FACTORS

Unforeseeable and unavoidable events that develop outside the control of the employee or employer (natural disasters, epidemics, curfews, etc.) lead to the suspension of the employment contract. The Labor Law regulates force majeure in two separate articles for the employee and the employer, and this distinction is critical for compensation rights.

3.1. Force Majeure Preventing the Employee from Working (Labor Law Art. 24/III)

These are reasons occurring not in the employee’s person but in their environment, preventing the employee from reaching the workplace or working. Examples: Floods, roads closed due to snow, quarantine of the region where the employee lives.

Legal Consequence: When these reasons arise, the employee cannot go to the workplace. The employment contract is suspended for the first week, and the employer pays half wages. After one week, the employee may exercise the right to terminate for just cause pursuant to Art. 24/III and claim severance pay. If the right to terminate is not exercised, the contract remains suspended, but no wages are paid.

3.2. Force Majeure Requiring Work Stoppage at the Workplace (Labor Law Art. 25/III)

These are reasons directly affecting the workplace. Examples: Burning of the workplace, damage in an earthquake, ban on raw material imports, suspension of workplace activity by state decision as in the Covid-19 period.

Legal Consequence: The employer cannot fulfill the obligation to employ the worker (impossibility of performance). The employee is paid half wages for the first week. For periods exceeding one week, the employer has the right to terminate the employment contract for just cause pursuant to Art. 25/III. If the employer does not terminate, the contract remains suspended. The force majeure regulated in this article must be a completely external phenomenon, not the employer’s economic difficulty or administrative error.

3.3. Half-Wage Application and Calculation

In cases of force majeure (both 24/III and 25/III), the Law stipulates that “half wage” (1/2) will be paid to the employee during the one-week waiting period (Labor Law Art. 40).

Which Wage? According to the dominant view in the doctrine and Court of Cassation practice, this “half wage” is calculated based on the employee’s bare wage. Wage supplements such as bonuses, premiums, and fuel aid are not included in this calculation.
Social Security Dimension: Since the employee is assumed to be working during this one-week period, SGK premiums must be deducted from the paid half wage. However, since “half wage” may generally fall below the minimum wage, the obligation to complete the earnings subject to premium to the lower limit belongs to the employer.

4. SUSPENSION CAUSES ARISING FROM COLLECTIVE LABOR LAW

Beyond individual labor law, the employment contract is subject to a special regime during the exercise of trade union rights.

4.1. Suspension During Strike and Lockout

The Law on Trade Unions and Collective Labor Agreements No. 6356 mandates that the employment contracts of workers participating in a legal strike or subjected to a legal lockout shall be suspended (Art. 67). This state of suspension is absolute and mandatory; it cannot be changed even by the agreement of the parties.

Wages and Social Rights: The employer has no obligation to pay wages during the strike and lockout. Social benefits such as premiums, bonuses, child support, and fuel aid are also not paid to the employee during this period. Provisions to the contrary cannot be included in collective labor agreements.
Prohibition of Replacement Workers: The employer cannot recruit permanent or temporary workers or employ others in place of workers whose employment contracts are suspended due to strike or lockout. This prohibition is to prevent strike-breaking. Also, workers not participating in the strike continue to work, but if the activity in the workplace has completely stopped due to the strike, they cannot be employed and receive wages either.
Right to Housing: Workers living in housing (lodging) provided by the employer cannot be evicted during the strike. However, they must pay for the expenses such as water, electricity, and gas for the housing themselves during this period.

4.2. Suspension Due to Union Executiveship

To support professional trade unionism, Law No. 6356 Art. 23 has introduced a special regulation. The employment contract of a worker who leaves the workplace because they are elected to the board of directors of a worker’s organization (union or confederation) is not considered terminated, but remains suspended until the executiveship duty ends.

Right to Return to Work: If the worker whose union executive duty ends applies to the former employer within one month from this date, the employer must start them to work within one month. If the employer does not start them to work, they are obliged to pay compensation according to the worker’s seniority. This compensation is different from the non-reinstatement compensation in job security, and its lower limit is determined by law.

Difference Between Union Representative and Executive: The workplace union representative continues to work in the workplace; their contract is not suspended. The suspension status applies only to professional union executives (president, board member).

5. AGREEMENT OF PARTIES (CONSENSUAL SUSPENSION) AND UNPAID LEAVE

“Unpaid leave,” which is not explicitly regulated in the legislation but is most frequently encountered in practice, is the suspension of the employment contract by mutual agreement of the parties within the scope of freedom of contract.

5.1. Written Consent Requirement and Risk of “Constructive Termination”

Labor Law Art. 22 states that substantial changes in working conditions can only be made with the written consent of the employee. Unpaid leave, which means the employee waives the right to work and receive wages, is the most substantial change.

Court of Cassation Precedent: According to the established precedents of the Court of Cassation, the employer cannot unilaterally put the employee on unpaid leave. Unpaid leave practice implemented against the employee’s consent is considered constructive termination (de facto termination) by the employer. In this case, the employee becomes entitled to severance and notice pay. Furthermore, if covered by job security, they can file a reinstatement lawsuit to have the invalidity of the termination determined.
Silence is Not Consent: The employee’s silence or failure to object to the unpaid leave letter notified to them does not mean they have accepted it. Consent must be explicit and written (Art. 22).

5.2. Covid-19 Pandemic Exception (Provisional Article 10)

The only exception to this general rule was introduced with Provisional Article 10 added to the Labor Law by Law No. 7244 during the Covid-19 pandemic. With this regulation, the employer was given the authority to unilaterally put the employee on unpaid leave without seeking consent. However, this authority was limited to a certain period and expired with the lifting of pandemic bans. Today, the general rule (mutual consent) applies again.

6. OBLIGATIONS OF PARTIES DURING SUSPENSION AND SOCIAL SECURITY (SGK) PROCEDURES

Although the suspension state seems like a passive period, it creates serious procedural obligations for the parties and before the state.

6.1. Social Security Institution (SGK) Notifications and Missing Day Codes

Since no wages are paid to the employee during periods when the employment contract is suspended (except for the first week of force majeure), SGK premiums are not deposited either. The employer must report these missing days with the correct codes in the “Monthly Premium and Service Document” (Withholding and Premium Service Declaration) every month. Incorrect code selection can lead to administrative fines and losses in the employee’s retirement rights.

Code	Description	Usage Area	Proof Document
01	Rest	Sickness, maternity reports	Medical Report (e-Allowance)
08	Strike	During legal strike	Strike Decision
12	Multiple	Being both reported sick and on unpaid leave in the month	Relevant Documents
21	Other Unpaid Leave	Unpaid leave by agreement of parties	Unpaid Leave Form (Signed by Employee)
27	Short Work Allowance	Economic crisis, force majeure	İŞKUR Approval Letter

6.2. General Health Insurance (GSS) Premiums

Since premiums are not paid while the employment contract is suspended, the employee’s right to benefit from health services may be endangered.

Rule: According to Law No. 5510, if the number of days for which no premium is paid exceeds 30 days in a month, the employee may fall out of the scope of General Health Insurance (GSS) and may have to pay their premiums (via G-1 test or directly) themselves. The employer does not pay GSS premiums during unpaid leave periods (except for the Pandemic period exception).

7. EFFECT OF SUSPENSION ON SEVERANCE PAY AND ANNUAL LEAVE CALCULATION

The most complex aspect of the suspension process, and the one most frequently subject to lawsuits, is whether these “non-working periods” will be taken into account in the calculation of employee receivables.

7.1. “Dead Time” and “Live Time” in Severance Pay Calculation

The general rule for calculating the 1-year period required to qualify for severance pay and the amount of compensation to be paid is as follows: “Periods during which the employment contract is suspended and the employee does not work or receive wages are not counted towards the seniority period.”

However, there are very important exceptions to this rule established by Court of Cassation precedents:

Strike and Lockout: The Law explicitly states (STİSK Art. 67) that periods spent in strikes and lockouts shall not be counted towards seniority.
Unpaid Leave: Not taken into account in seniority calculation. If an employee with 5 years of work takes 1 year of unpaid leave in between, severance pay is calculated over 4 years.
Imprisonment: Not counted towards seniority.
Health Reports (CRITICAL EXCEPTION): According to the established precedent of the Court of Cassation, the portion of the periods during which the employee is on report that exceeds the notice period by 6 weeks is not counted towards seniority. However, the Notice Period + 6 weeks period (“Reasonable Period”) is included in the severance pay calculation.
- Example Calculation: The notice period of an employee with 5 years of seniority is 8 weeks. This employee remained on report for 6 months (24 weeks) as a result of an accident.
  - Protected Period: 8 weeks (notice) + 6 weeks = 14 Weeks.
  - Excluded Period: 24 weeks (total) – 14 weeks = 10 Weeks.
  - Result: 14 weeks of this 24-week report will be added to the employee’s severance pay calculation, while 10 weeks will not.

7.2. Cases Deemed as Worked regarding Annual Leave Right (Labor Law Art. 55)

In the calculation of the 1-year “waiting period” required to qualify for annual paid leave, cases deemed as worked even if not actually worked are listed in Labor Law Art. 55.

Not Counted: Strike duration, long-term consensual unpaid leaves are not deemed as worked in the annual leave calculation. The employee’s annual leave accrual date (“accrual year”) is postponed by these periods.
Counted:
- Reasonable part of the days the employee cannot go to work due to accident or illness (again referring to the notice period + 6 weeks rule).
- Periods where female employees do not work before and after birth (16 weeks).
- Short-term military duties other than compulsory military service (maneuver, training).
- Other paid leaves given by the employer and short work periods.

7.3. Determination of Wage Basis for Compensation

When the contract of an employee whose employment contract has been suspended for a long time is terminated, over which wage will the severance pay be calculated?

Court of Cassation Precedent: According to the 9th Civil Chamber of the Court of Cassation, the concept of “last wage” refers to the last wage the employee actually worked for and was entitled to within the scope of the employment relationship. If the employee has been on unpaid leave for 2 years and is then dismissed, the compensation calculation is made over the wage 2 years ago (last wage before suspension). However, in doctrine, it is argued that this situation victimizes the employee in an inflationary environment and that the wage should be updated according to the precedent wage at the date of termination. The dominant view of the Court of Cassation is still in the direction of “last wage before suspension.”

8. CONCLUSION AND EVALUATION

The institution of suspension of the employment contract is one of the most dynamic areas of Turkish Labor Law, and one most prone to errors in practice. The main conclusions from our analysis are:

Prohibition of Arbitrariness: Employers cannot unilaterally place employees on unpaid leave (suspension) due to economic contraction or administrative preferences. The “Written Consent” requirement is the cornerstone of the employee’s wage security.
Time Limits are Vital: Limits such as “Notice + 6 Weeks” in health reasons, “1 Week” in force majeure, and “term of office” in union executiveship are the red lines determining when the suspension state will turn into termination. Miscalculation of these periods can transform a just termination into an unfair termination.
Calculation Engineering: Human Resources units and lawyers must strictly adhere to the principle of “splitting periods” (part included/not included in seniority) when reflecting suspension periods on severance pay and annual leave seniority calculations. Calculation errors made especially in long-term reports result in serious compensation differences.

Ultimately, the suspension of the employment contract is a sensitive period where the trust relationship between the parties is frozen but not severed. The management of this process requires full compliance with both the technical details of the Labor Law (notifications, SGK codes) and the equity-based precedents of the Court of Cassation (rule of honesty, proportionality).

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