AT THE INTERSECTION OF CORPORATE AND EMPLOYMENT LAW: PRINCIPAL EMPLOYER – SUB-EMPLOYER RELATIONSHIPS AND LEGAL RISK MANAGEMENT – 4. Joint and Several Liability Arising from Occupational Accidents in the Principal Employer – Sub-Employer Relationship, and Recourse in the Internal Relationship

Under Article 2/6 of Employment Law No. 4857, the principal employer is liable together with the sub-employer, towards the sub-employer's workers and in relation to that workplace, for obligations arising from this Law, from the employment contract or from any collective bargaining agreement to which the sub-employer is a party. This statutory regime of joint liability applies directly where a sub-employer's worker suffers an occupational accident.

Since the principal employer's duties of supervision, inspection and coordination continue under the Occupational Health and Safety Law, the injured worker or their dependants may direct compensation claims jointly against the principal employer and the sub-employer within the scope of the liability arising in the particular case.

In occupational accident litigation, a defence by the principal employer amounting simply to "that worker is not my employee" is not accepted in the practice of the Court of Cassation as a factor severing the causal link. The court will examine whether the principal employer inspected compliance with occupational health and safety measures at its own workplace on the part of the sub-employer.

As regards the Social Security Institution's recourse claims, the special liability regime laid down in Article 21 of Law No. 5510 applies; depending on the features of the particular case, the liabilities of the principal employer and the sub-employer are assessed within the framework of fault and causation. The principal employer's recourse against the sub-employer, in the internal relationship, for compensation it has been obliged to pay externally is subject to the provisions of the Turkish Code of Obligations.

Recourse clauses inserted into commercial contracts are significant in the allocation of liability between the parties, but they do not wholly eliminate the principal employer's liability arising from its own fault. In recourse actions the courts determine fault and hold that, as a rule, the principal employer may not recover from the sub-employer the portion corresponding to its own fault.

The commencement and duration of the limitation period applicable to a recourse claim must be assessed separately according to the legal nature of the particular case and the applicable legislative provisions. In practice, for a recourse action to be brought, the principal employer must have actually made payment into the enforcement file or to the entitled party. The point most often overlooked by companies in recourse processes is limitation.

The principal employer must be careful not to miss the statutory period (generally two years) running from the date on which it actually paid the compensation, and must be prepared for recourse claims that the Social Security Institution will bring on the basis of fault ratios.

Conclusion for Companies: In the principal employer–sub-employer relationship, legal risk persists not only at the contract drafting stage but also during actual implementation on the ground. Legal review before contracting, robust recourse provisions and regular occupational health and safety compliance checks on site are the greatest safeguards protecting your company in the event of an accident.