What is Labour Law and The Principle of Equal Treatment?
Labour law (it is also known as labor law or employment law) arbitrates the relationship between workers, employers, trade unions and the government. The Principle of Equal Treatment is based on to ensure all people - and in the context of the workplace, all employees – have the right to receive the same treatment and not to be discriminated 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.
The Principle of Equal Treatment Within the Context of Labour Law
It is forbidden the employer to perform different procedures against workers those working in the same workplace or enterprise, due to reasons that are not objective and justified. 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. The opposite practice, in other words, treating unequal persons equally can constitute inequality in itself. In the case of objective and justifiable reasons, it cannot be mentioned that the employer must treat equally.
Employer's obligation of equal treatment is only valid only 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 relation, based on language, race, color, sex, disability, political thought, philosophical belief, religion and 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.
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 the employment contract. For instance:
- The employer shall not treat a part-time worker differently than a full-time worker and a fixed-term worker differently than a permanent worker unless on founded reasons.
- 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 on the grounds that his/her 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 his/her 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 he/she has 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 the calculation of 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 to 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, that is, 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:
- The 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 certain 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 make any discrimination among employees in terms of gender, family, race, language, religion, sect, and political opinion in the provision of social benefits.
- The employer is obliged to treat employees equally while exercising their right to management. It is forbidden the employer to create non-objective and unjustified distinctions between employees in matters such as 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, with respect to 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 the wages of employees. Therefore, different wages may be paid to employees for reasons such as specialization, age, seniority, education, talent, and performance. For instance, in case the employer does not pay the same wages to an unskilled employee and an electrical engineer, it would not be a breach of the obligation of equal treatment.
- 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 employees who are members of a union and not or employees who are members 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 reasons of trade union activities, union compensation shall be ordered by the court.
*In the preparation of 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 basis.