New circular amends law in favour of female employees - International Law Office

Introduction
Maternity leave
Restrictions
Recent case
Comment

Introduction

The right of female employees to include maternity leave in service periods has been granted for the first time following amendments to the Social Security and General Health Insurance Law (5510). Female employees who suspend their employment for maternity reasons will be able to recover unpaid premium working days.

Under the law, female employees who give birth to a child can convert both maternity leave and the period that they did not work following maternity into insured days - that is, they have a borrowing right. The law allows female employees to borrow unpaid maternity periods on a maximum of two occasions, provided that:

• such employee worked under an employment contract for two years or more before the birth; and
• the child survives.

Female employees may include these borrowed terms in service periods.

Maternity leave

The periods which may be borrowed under the law are detailed below:

• Female employees are granted 16 weeks' maternity leave - eight weeks before and eight weeks after the birth - in accordance with Article 74 of the Labour Law. For multiple pregnancies (eg, twins or triplets), the employee is granted two extra weeks (ie, a total of 10) before the birth.
• Unpaid leave of up to six months is granted upon request to the female employee following the expiration of the 16-week period (or 18-week period for multiple pregnancies).
• The female employee may request such period twice, provided that she worked under an employment contract for at least two years as of the birth and the child survives.

According to Law 5510, inclusion of maternity leave in service periods is subject to the following conditions:

• Only female employees who are insured by the Social Security Institution and employed by one or more employer through an employment contract (under Article 4(a) of the law) may benefit from the right to include maternity leave in service periods. Female employees who are self-employed (Article 4(b)) and female employees who work in public sector administration (Article 4(c)) cannot benefit from this right.
• Female employees may benefit from this right for the births of a maximum of two children.
• Female employees may include a maximum of two years' term into the service period for one child; the total term which may be included into the service period of a female employee is therefore four years.
• Female employees are entitled to include maternity leave in the service period for births following the commencement date of the insurance.
• In order for the whole two-year term to be included in the service period, the child must survive; in the event of the child dying within this period, the term up to the date of birth may be included into the service term.
• If a female employee gives birth to another child before the expiry of the two-year term following her first birth, the term between her first birth and her second birth plus another two-year term may be included in the service term for her second birth.

Restrictions

The right to include maternity leave in the service period (as granted by Law 5510) has been restricted by communiqués and circulars published contrary to the law. This has triggered problems regarding the application of the right.

According to the law, if the female employee is actively working and her social security premiums are paid before the birth, it is not mandatory for such employee to be insured in order to benefit from this right. In addition, such female employees do not have to resign before the birth. To benefit from the right to include maternity leave in the service period, it is sufficient that the female employee be registered with the Social Security Institution as an insured person.

The law further states that if a female employee who did not work for two years following her first birth becomes pregnant at the end of such two-year term (but before starting work) and gives birth to a child, she will be entitled to include the 16-week maternity leave period in the service period relating to the second birth. However, according to the institution's regulations, a female employee who did not work as an insured during this term shall not be entitled to this borrowing right. The female employee is required to resign due to the birth and work as an active insured, as stated above. Birth must take place within 300 days of the date on which the female employee resigned.

Recent case

Applications of the institution that are contrary to the law have been revoked by a newly published decision of the 10th Civil Chamber of the Court of Appeals. As a result, the conditions of the right to include maternity leave in service periods have been clarified. The court shed light on whether this right should be applied for maternity leave before October 1 2008 (ie, the date on which the right became effective) and whether the female employee should be an active insured.

The court decided that Article 41 of the law relating to the right to include maternity leave in service periods favours the insured. No regulation exists that prevents the application of this right to maternity leave before the law came into force. The court further ruled that it is sufficient that the female employee formerly fulfilled mandatory insurance registration before the institution due to employment in order for her to benefit from this right - such employees need not be actively insured.

According to the decision, it should be accepted that female employees must benefit from this right, provided that they worked under an employment contract for at least two years at the start of maternity leave and the child survives, without observing any other right.

Furthermore, the court confirmed that if a female employee whose first period of maternity leave took place after registration before the institution becomes pregnant again and has her second maternity leave period before the expiration date of the two-year term and prior to commencement of work, she can include the period between the start of her first maternity leave and her second maternity leave, together with the two-year term, in the service term for the second maternity leave.

Comment

Following the decision of the Court of Appeals, the institution published a circular amending the conditions regarding the application of borrowing rights for the benefit of female employees after giving birth. In this way, the conditions have come into compliance with the law. The right granted to the female employees by the law aims to prevent them from being financially harmed while fulfilling family responsibilities.

For further information on this topic please contact Melek Onaran Yüksel or Hikmet Özkaya at YükselKarkınKüçük by telephone (+90 212 318 05 05), fax (+90 212 318 05 06) or email (myuksel@yukselkarkinkucuk.av.tr or hozkaya@yukselkarkinkucuk.av.tr).