LEGAL STATUS OF EMPLOYEES DIAGNOSED WITH EPILEPSY

I. EMPLOYEES DIAGNOSED WITH EPILEPSY

Epilepsy is an important, yet poorly dealt-with public health problem, which is seen frequently worldwide. As a hidden disability, patients with epilepsy are often vulnerable in the society they live in. Although the vulnerability of people living with epilepsy may be partly attributed to the disorder itself, the particular stigma associated with epilepsy brings a susceptibility of its own. This is one of the reasons why the High Court of Appeals precedents aim to protect the rights of the employees diagnosed with epilepsy and to ensure they are treated with due care.

Epilepsy patients are allowed to carry out most of the jobs/participate in the daily life activities to the extend possible, provided that it is documented regularly that they do not suffer aggressive epilepsy attacks and their health condition is stable. For example, employees diagnosed with epilepsy may obtain a driver’s license under category 1 (e.g. drive a regular car) provided that they are signed off by a team of medical experts. However, they can neither drive ambulances nor commercial/official vehicles.

Likewise, epilepsy patients are not allowed to perform certain jobs, such as being a fire-fighter, a surgeon, or take active roles where they have to deal with dangerous materials (e.g. chemicals, sharp objects) or where they need to operate in risky areas.

Under Turkish law, the employees diagnosed with epilepsy are required by law to disclose this condition prior to the commencement of their employment, as the employers are obliged to provide the employees diagnosed with epilepsy with a suitable environment and working conditions fit for their condition. Although this is not explicitly codified for epilepsy patients under the Labor Law, with no. 4857 or the relevant legislation, the general principle of providing suitable environment and working conditions fit for the employees is a priori applicable for the employees with epilepsy.

II. MAINTENANCE AND THE TERMINATION OF THE EMPLOYMENT CONTRACT BY THE EMPLOYER

Under Turkish law, termination of employment must be considered as a last resort under any circumstance. Employers are obliged to make a sincere effort not to terminate employment agreements. This rule is called the "ultima ratio" principle and governs the entirety of Turkish labor law. As per the High Court of Appeals' precedents, there is insufficient performance where, for instance, an employee's performance is lower than the performance of the employees who undertake the same or similar works, or where an employee's concentration is lower than expected, or the employee fails to improve his abilities or knowledge, suffers from lack of adaptation or a specific kind of sickness of the employee's keeps him from working constantly and efficiently (such as epilepsy). Thus, in theory, terminating the employment agreement of an employee diagnosed with epilepsy due to a decrease in performance is admissible.

However, there are some specific characteristics of epilepsy regarding the employer's liability to employees for equal treatment during recruitment, employment, and dismissal. Epilepsy gives the employer the right to terminate the employment agreement in the following cases: the employee does not comply with his obligation to provide the correct information about his condition; epilepsy affects performance despite the employer’s efforts to provide a suitable environment/job for the employee; epilepsy is incurable and causes endangerment. In the meantime, the employee also has the right to give a notice of termination of the employment agreement, when it becomes impossible for him/her to perform his/her duties.

During the employment of an employee diagnosed with epilepsy, the employer must adhere to the below criteria and ensure the fulfillment of the below:

• The relevant health condition is well-documented by doctor’s reports, and the employee is signed-off to perform the tasks he/she is assigned to;

• In case of an occupational accident, and throughout the employment, the employer has taken all necessary measures to protect both the employee with epilepsy, and also the remaining employees, as well as the well-being of the working environment;

• The employer is required to offer an alternative job/position to the employee, which is a better fit when the epileptic health condition is concerned, if the current conditions of the job are not suitable;

• The employer must take an action, after trying all other options and when termination is the last resort (i.e. ultima ratio);

Based on former precedents, in case of an occupational accident, the High Court of Appeals runs the following checks on a case-by-case basis:

• Has the employee ever been forced/requested to perform a task that he/she should not have performed or that he/she had remarkable difficulty in performing?

• On the date of the accident, has the employee suffered a notable amount of stress or tension that is against his/her routine or that might be troubling for him/her to cope with?

• Is it the way the employee performs the tasks he/she is assigned, that caused the accident (e.g. the way he/she is requested/forced to carry out certain tasks such as climbing high ends, dealing with sharp objects in tense environments etc.)?

In a ruling of the High Court of Appeals from 2014, it is stated that epilepsy is a disease where temporary black-outs are possible, and therefore it is quite risky to assign an employee diagnosed with epilepsy to a job, where utmost caution and diligence is required, given that it is always possible he/she could have an attack while on the job. The High Court of Appeals dictates that this is an invitation to an occupational accident, and thus, the employer must have offered an alternative position to the employee, (which would be a better fit given his/her health conditions), and further that the principle of ultima ratio must have been complied with. The High Court of Appeals further notes that the employer, if they had not been duly informed about this health condition prior to the commencement of the employment, must provide adequate data proving such negligence and dishonesty of the employee.

Kindly note that the High Court of Appeals often favors the employees in case of a dispute, as this is the main motive behind the codification of the Labor Law. The idea is to protect the party that is relatively disadvantaged, i.e. the employee. Therefore, the High Court of Appeals, upon running delicate checks, requires solid arguments to be presented by the employer, where all of the above-mentioned criteria are duly fulfilled. Otherwise, the employers often face notably high compensations.