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The right to rest, one of the fundamental elements of working life, is guaranteed by Article 50 of the Constitution, and the right to annual paid leave is regulated in concrete terms by Labour Law No. 4857. In this context, annual leave stands out as one of the most important social rights in labour law, serving to protect the employee’s physical and mental health, to increase productivity and to ensure job security. This article assesses the accrual of the right to annual paid leave, the determination of its duration and the principles governing its use, in the light of the legislative provisions and case law.
The right to rest, one of the fundamental elements of working life, is guaranteed by Article 50 of the Constitution, and the right to annual paid leave is regulated in concrete terms by Labour Law No. 4857. In this context, annual leave stands out as one of the most important social rights in labour law, serving to protect the employee’s physical and mental health, to increase productivity and to ensure job security. This article assesses the accrual of the right to annual paid leave, the determination of its duration and the principles governing its use, in the light of the legislative provisions and case law.
1. Accrual of the Right to Annual Paid Leave
Under Article 53 of Labour Law No. 4857, employees who work under an employment contract in workplaces covered by this Law and who, counting from the date on which they started work for the same employer, have worked for at least one year, including the probationary period, are entitled to annual paid leave. The one-year period here is the period of service the employee has completed without interruption in the employment of the same employer. The probationary period is included in calculating the one-year period, and uninterrupted work by the employee is essential.
2. Calculation of the Leave Period: Length of Service and Seniority
The length of annual leave is determined by the employee’s seniority on the date on which he or she becomes entitled to leave. That is, the employee’s total length of service on the date on which the leave entitlement arises is taken as the basis. In Article 53 of the Law, the leave periods are regulated according to length of service as follows:
At least 14 days of annual paid leave for employees with between 1 and 5 years of service (5 years inclusive),
At least 20 days for employees with more than 5 and fewer than 15 years of service,
At least 26 days of annual paid leave is granted to employees with 15 years (inclusive) or more of service.
However, for employees under 18 or over 50 years of age, this period is at least 20 days.
3. Calculation of the Period for a New Leave Entitlement: Start of the Service Year
Pursuant to Article 54 of Law No. 4857, the one-year period of service required for the employee’s next annual leave entitlement is calculated from the date on which the previous annual leave entitlement arose. This important provision allows the leave entitlement corresponding to each service year to be used in the course of the service year following the one in which the entitlement was earned. Accordingly, each time a service year is completed the employee earns a new leave entitlement, and uses it within the following service year.
By way of example, if an employee started work on 1 July 2023 and has worked uninterruptedly for the same employer, the first annual leave entitlement arises on 1 July 2024. In this case the employee is required to use this leave between 1 July 2024 and 30 June 2025.
4. Use of Annual Leave and the Employer’s Obligation
The employer is obliged to allow an employee in whom the right to annual paid leave has arisen to use this leave. This right may be increased in part by the employment contract or the collective labour agreement, but may not be restricted. Article 56 of the Law provides that annual leave must be used without being divided. However, by agreement of the parties, a portion of the annual leave may be divided into more than one part, provided that it is not less than 10 days.
The employer cannot prevent the employee from using his or her leave and cannot replace this right with another benefit. Furthermore, no deduction may be made from the employee’s wages during leave. On the contrary, the pay for the leave must be paid in advance to the employee going on leave, before the leave begins (Art. 57).
5. Cases Where Annual Leave Is Not Used
The right to annual leave is a right limited to its use, and it cannot, as a rule, be exchanged for money. However, where the employee’s employment contract terminates for any reason, the wage receivables relating to unused annual leave periods are paid to the employee on the basis of his or her last wage (Art. 59). This provision secures the employee’s retrospective leave entitlements.
6. Advance Leave Practice (Taking Leave Against Next Year’s Leave)
In practice, employers are under an obligation to allow employees who have become entitled to annual paid leave to use their leave. However, for practical reasons such as retaining qualified and skilled employees, increasing their motivation and ensuring workforce continuity, employers from time to time also resort to allowing leave to employees who have not yet become entitled to annual leave. This is generally called “advance leave” or “use of annual leave against next year’s leave”.
In this practice, the employee requests annual leave of his or her own accord; the employer, approving this request, allows the employee to use as an advance an annual leave that he or she has not yet earned. Such practices are frequently preferred, in particular in periods when seasonal intensity has decreased, or for employees who request leave for personal reasons.
6.1. Legal Basis and Assessment from the Perspective of the Legislation
There is no provision in Labour Law No. 4857 or in the Regulation on Annual Paid Leave that expressly prohibits allowing an employee to use, against next year’s leave, annual paid leave that he or she has not yet earned. Accordingly, since there is no prohibition to this effect, it is possible for such a practice to be carried out in a manner that is in the employee’s favour.
Provided that it does not contravene the mandatory provisions of the Law and does not impair the employee’s rights, the granting of additional or early leave entitlement to the employee by the common intention of the parties is legally valid. Indeed, in accordance with the generally accepted principle in the field of labour law, the rights granted to employees may be increased, provided that they are not below the minimum limit set out in the Law; they may be extended in the employee’s favour.
Court of Cassation (Yargıtay) 9th Civil Chamber, Docket No. 2008/14523, Decision No. 2010/3893, dated 18.02.2010
“In the specific case, it is seen that the claimant employee’s leave entitlement was used without interruption in the February 2006 payroll. In this case, even if it was used before the one-year period had elapsed, the claimant must be deemed to have used his annual leave. The employee has consented to the use of the annual leave.”
Bursa Regional Court of Appeal (Bursa BAM), 3rd Civil Chamber, Docket No. 2019/1762, Decision No. 2020/894, dated 15.6.2020
“In the specific dispute, it was observed that, in the signed annual leave request forms submitted to the file, the claimant (albeit before the one-year period had elapsed) requested annual paid leave for the periods 20/02/2016 - 02/03/2016 and 10/04/2016 - 22/04/2016. Court of Cassation 9th Civil Chamber 2008/14523 - 2010/3893 - 18.02.2010 ‘In this case, even if it was used before the one-year period had elapsed, the claimant must be deemed to have used his annual leave. The employee has consented to the use of the annual leave. There is no pressure from the employer in this regard. Otherwise, there would be an abuse of right. The court’s acceptance of the annual leave receivable was erroneous.’ In accordance with the precedent judgment, where the employee and the employer have consented, Bursa Regional Court of Appeal (Bursa BAM), 3rd Civil Chamber, Docket No. 2019/1762, Decision No. 2020/894, dated 15.6.2020, the leave used before the completion of one year must be deemed to be the use of annual leave.”
At this point, the important matter is that advance leave takes place at the employee’s express request and with the employer’s approval, that is, that it is a consensual legal transaction. Otherwise, the employer’s unilaterally allowing advance leave to the employee may become contentious from the standpoint of labour law.
6.2. Situation Where an Employee Who Has Been Granted Advance Leave Leaves the Job
One of the problems frequently encountered in practice is the situation where an employee who has taken advance leave leaves the job before becoming entitled to annual leave. In this case, it is debated whether the leave days that the employee has actually used but has not yet earned can be set off against his or her wages upon leaving the job.
Annual paid leave is a right to rest granted to the employee by the Law, and it arises only if the employee earns this right (that is, works for at least one year). Therefore, a leave that has not yet been earned has no legal counterpart, and the pay for this leave is not a receivable either. In this context, leave granted in advance is regarded as a facility provided at the employer’s discretion and with its consent. As to whether, upon termination of the employment contract, the employer may deduct from the employee’s wages the equivalent of leave that the employee was allowed to take without having earned it, the relevant Court of Cassation decisions are to the effect that monetary reimbursement is not possible. Indeed;
Court of Cassation (Yargıtay) 9th Civil Chamber, Docket No. 2016/26145, Decision No. 2020/11957, dated 14.10.2020
“There is no legal basis for claiming monetary reimbursement, on the ground that the annual paid leave the employer allowed the employee to take exceeded what had been earned.”
Decision of the 9th Civil Chamber of the Court of Cassation (Yargıtay), Docket No. 2016/26145, Decision No. 2020/11957
“There is no legal basis for claiming monetary reimbursement, on the ground that the annual paid leave the employer allowed the employee to take exceeded what had been earned. Therefore, the acceptance of the receivable that the claimant/counter-defendant employer claimed for the 6 extra days of leave it allowed the defendant/counter-claimant employee to take, when it should have been rejected, is also erroneous.”
As a result, as frequently seen in practice, there are practices of obtaining written approval from an employee who has been granted advance leave to the effect that, upon termination of the employment contract, the pay for unused leave will be set off against the monthly salary. However, such practices do not accord with the case law of the Court of Cassation. For the Court of Cassation takes the view that, where the employer allows an employee more annual paid leave than he or she has earned, there is no legal basis for the employer to claim monetary reimbursement in respect of that excess.
In this context, if the employer has allowed the employee leave against next year’s leave before the right to annual leave has arisen, and the employee leaves the job without having actually earned that leave period, the employer has no right to claim back the pay for the excess annual leave allowed. Such advance leave practices constitute a facility provided by the employer of its own volition, and no retrospective wage claim can be made against the employee.
