Article 5 of the Labor Law imposes an obligation of equal treatment on the employer within the scope of workers’ rights. The employer’s obligation of equal treatment has two aspects. The first of these is related to the prohibition of discrimination. The prohibition of discrimination is related to the fundamental rights and freedoms of individuals and also originates from the constitution. The second is the obligation of equal treatment, which refers to treating workers in the same or similar situations equally. This obligation is also related to the employer’s right to manage arising from the Code of Obligations.
Although it is a universal principle, according to the prohibition of discrimination within the scope of workers’ rights, no discrimination can be made in the employment relationship based on language, race, color, gender, disability, political opinion, philosophical belief, religion and sect and similar reasons.
The obligation of equal treatment in labor law refers to the obligation of the employer not to treat workers differently without justified reasons, not to make unfair discrimination and to avoid arbitrary behaviors. The obligation of equal treatment is an obligation that can only arise after the establishment of the employment relationship between the employee and the employer. The employer cannot make any direct or indirect difference due to gender or pregnancy unless the type of the employment contract, the duration of employment, biological or job-related reasons make it necessary. A lower wage cannot be decided for a job of the same or equal value due to gender.
Methods that can be applied in case of a violation of the principle of equality and prohibition of discrimination in Turkey:
- According to Article 5 of the Labor Law No. 4857, the employee can request compensation in the amount of 4 months’ wage under the name of discrimination compensation. In addition, the employee can also request the rights that they were deprived of here. If the employment contract was terminated unfairly, they can also request the seniority, notice and other labor receivables that they were deprived of.
- An application can be made to the Human Rights and Equality Institution of Turkey within the scope of Law No. 6701. Application to the institution is subject to the rejection of the request for the person who committed the discrimination to end this practice or to the application after waiting 30 days after the request is made. However, this period is not required in cases where there is a possibility of irreparable and impossible damages. The institution imposes administrative fines on individuals and institutions that violate the prohibition of discrimination as a result of the application.
- Again, within the scope of the employee complaint within the scope of Article 99 of Law No. 4857 or in case of detection, an administrative fine is imposed on each employee by the administration (Turkish Employment Agency – İŞKUR) against the employer who violates the prohibition of discrimination and the obligation of equal treatment.
- Finally, you can use your right to complain by applying to the security units and prosecutors’ offices within the scope of the crime of Hate and Discrimination. The penalty for violation of the prohibition of discrimination is regulated in Article 122 of the Turkish Penal Code. This crime is not a crime subject to complaint and the person who commits this crime is punished with imprisonment from one to three years.
Att. Havva KÜLÜĞ
