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What is Labour Law and The Principle of Equal Treatment?

ERDAL ISBILIR SENA GUL

What is Employment Law and the Equal Treatment Principle?

Labour law (also known as employment law) arbitrates the relationship between workers, employers, trade unions and the government.

The principle of equal treatment is based on ensuring all people -and in the workplace context, all employees- have the right to receive the same treatment and not be discriminated against regardless of a worker’s position, age, disability, sex, race and religion.

The scope and the results of the employer’s obligation of equal treatment for fair working conditions are regulated in article 5 of Labour Law numbered 4857, under Turkish Law.

What is The Principle of Equal Treatment Within The Context of Labour Law?

It is forbidden for the employer to perform different procedures against workers working in the same workplace or enterprise due to not objective and justified reasons. This principle is called the employer’s obligation of equal treatment. However, the equality mentioned here is not absolute; it means equality between employees in equal positions. In the opposite practice, in other words, treating unequal persons can equally constitute inequality in itself. In the case of objective and justifiable reasons, it cannot be mentioned that the employer must treat equally.

Employers’ obligation of equal treatment is only valid between employees who work in the same place. Employees working in a workplace do not have the right to demand equal treatment of their employer by showing the practices in the workplaces of other employers as a precedent.

The scope and the results of the employer’s obligation of equal treatment are regulated in article 5 of Labour Law, numbered 4857. According to the article, no discrimination shall be made in the business relationship based on language, race, colour, sex, disability, political thought, philosophical belief, religion, sect, and similar grounds. The reasons stated in the article are not limited to these (numerous clauses). So, no distinction shall be made based on other reasons like those in the article.

What is The Principle of Equal Treatment Ethics?

Also, in Turkish Labour Law, the scope of the obligation of equal treatment is regulated regarding gender and various types of employment contracts. For instance:

  • The employer shall not treat a part-time worker differently from a full-time worker and a fixed-term worker than a permanent worker unless founded.
  • The employer shall not treat a worker differently, directly, or indirectly, while concluding the labour contract, establishing the conditions thereof, implementing and terminating it due to sex or pregnancy, unless biological reasons or those of the work quality oblige.
  • A lower wage shall not be decided for an equal or comparable job on the grounds of sex. Implementation of special protective provisions due to the sex of the worker shall not justify the application of a lower wage.
  • Any worker employed on a fixed-termed labour contract shall not be subjected to the different procedure compared to a comparable worker employed on a permanent labour contract, merely because their labour contract has a fixed term, unless a reason justifying distinction exists.
  • The worker employed on a part-time labour contract may not be subjected to any procedure different than a full-time comparable worker, merely on the grounds that their labour contract is part-time, unless a reason justifying such discrimination exists.

In case of contradiction to the provisions of the above paragraph in the business relation or its termination, the employee may demand the rights that they have been deprived of, besides an appropriate indemnity comparable up to four months’ wage. However, in case of the discrimination made by the employer for trade union reasons, the provisions regarding trade union compensation regulated in article 25 of Law on Trade Unions and Collective Labour Agreements numbered 6356 are applied. In calculating discrimination compensation, the gross wage is taken as a basis. The five-year period of limitation applies to this compensation.

Without prejudice to the provisions of Article 20, the worker shall be obliged to prove that the employer has contradicted the provisions of the above paragraph. However, when the worker puts forward a situation strongly suggesting the probability of the existence of an infringement, the employer shall become obliged to prove that no such infringement exists.

The Employer Can Discriminate on Objective Criteria

Except in cases where the employer’s obligation to treat equally is absolute, the employer cannot discriminate in any way. There are also cases where this obligation is not absolute. In other words, the employer can discriminate on objective criteria.

The Cases in Which The Obligation to Treat Equally is Absolute Are as Follows:

  • Employers must treat employees equally in the disburse of social benefits. However, the employer can give social benefits to all employees working in the workplace or to a specific group. However, the employer can disburse social benefits to all employees working in the workplace or only to a certain group. But there also should be objective principles in the disburse of social benefits to a certain group. The employer cannot discriminate among employees regarding gender, family, race, language, religion, sect, and political opinion in providing social benefits.
  • The employer is obliged to treat employees equally while exercising their right to management. It is forbidden for the employer to create non-objective and unjustified distinctions between employees in matters such as a smoking ban, overtime, holidays, and the implementation of disciplinary provisions. The employer shall not discriminate between workers who are members of a trade union and those who are not, or those who are members of another trade union, concerning working conditions or terms of employment. The provisions of the collective labour agreement with respect to wages, bonuses, premiums, and money-related social benefits shall be exceptions.

The Cases in Which The Obligation to Treat Equally is Not Absolute Are as Follows:

  • The employer is not obliged to treat equally in determining employees’ wages. Therefore, different wages may be paid to employees for specialization, age, seniority, education, talent, and performance. For instance, if the employer does not pay the same wages to an unskilled employee and an electrical engineer, it would not breach the equal treatment obligation.
  • Also, the employer is not obliged to treat equally in the termination of the employment contracts. The fact that an employer has dismissed an employee does not necessitate the dismissal of other employees who are also hired or in the same position. Since the employment contract is a contract that establishes a personal relationship between the parties, the personal situation and the characteristics of the employee are also taken as a basis at the termination of the contract. The employer cannot discriminate against employees who are members of a union and not employees of different unions in terms of termination of the employment contract. Where it has been determined that the contract of employment has been terminated for trade union activities, union compensation shall be ordered by the court.

In preparing this text, the translation of Labor Law numbered 4857 at <https://www.judiciaryofturkey.gov.tr/Labour-Law-is-available-on-our-website> has been taken as a basis.

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