One of the most important obligations of the Employer arising from the employment contract is the “obligation of equal treatment”. Employer’s obligation of equal treatment is regulated in Labour Law no.4857 Article 5 which is based on Article 10 of the Turkish Republic Constitution. While Article 5 of the Labour Law regulates the obligation of equal treatment, Article 10 of the Constitution of the Turkish Republic which is applicable to whole law system imposes both the prohibition of discrimination and the obligation of equal treatment on the Employer. In this context, the Employer is obliged and responsible for treating equally during the termination of the contract during the employment relationship, and not discriminating between the employees while hiring the employee. In this article, we inform you regarding the obligation of equal treatment of the Employer and its sanctions.
According to the Article 5 of the Labour Law entitled “The Principle of Equal Treatment”, “No discrimination based on language, race, sex, political opinion, philosophical belief, religion, and sex or similar reasons is permissible in the employment relationship. Unless there are essential reasons for differential treatment, the employer must not make any discrimination between a full-time and a part-time employee or an employee working under a fixed-term employment contract (contract made for a definite period) and one working under an open-ended employment contract (contract made for an indefinite period). Except for biological reasons or reasons related to the nature of the job, the employer must not make any discrimination, either directly or indirectly, against an employee in the conclusion, conditions, execution, and termination of his (her) employment contract due to the employee’s sex or maternity. Differential remuneration for similar jobs or for work of equal value is not permissible. Application of special protective provisions due to the employee’s sex shall not justify paying him (her) a lower wage.” so that the Employer is imposed with an obligation of equal treatment and no discrimination based on language, race, sex, political opinion, philosophical belief, religion, and sex or similar reasons and any discrimination between a full-time and a part-time employee is permissible. Even though it can be understood that there is absolute equality in employment relations from the abovementioned article, it shall be accepted that the contracting party has the right to choose the party to sign the employment contract, to create the content of the contract for his benefit, and to terminate it in a proper manner when it required. In this respect, we can say that the obligation of equal treatment in terms of Labour Law is the employer’s obligation not to act differently among workers which are employed in the workplace unless there is a just cause and objective reason.
Paragraph 6 of the Article 5 of the Labour Law regulated ‘’Discrimination Compensation” as the sanction of the obligation of equal treatment breach. According to this regulation, if the Employer breaches the obligation of equal treatment, the employee may claim discrimination compensation in the amount of wages up to 4 months and his rights that he has been deprived of. The amount of this compensation is not fixed and shall be appraised by the Judge according to the characteristic of per case. On the other hand, it is possible to increase the amount of compensation by collective labour contracts or employment contracts, since the wage up to 4 months, which is envisaged as discrimination compensation, is a relative mandatory rule. However, since it is regulated that this compensation is entitled “when an employment relationship or termination of this relationship is violated by the provisions of the above paragraph”, the doctrine states that, in case of discrimination in employment, such discrimination compensation cannot be ruled out. However, the employee may still claim compensation for his loss. On the other hand, the Labour Law does not regulate only compensation sanctions on cases of discrimination, but also it is regulated that the employer or the employer’s representative who acts contrary to the principles and obligations of legal arrangements shall be imposed administrative fines for each employee in this situation.
In addition, the obligation of equal treatment does not mean that all workers should be brought to the same conditions without any discrimination, instead, it means “preventing the employees in equal qualifications from being treated differently”. In other words, the Employer will be able to discriminate between employees with different abilities and qualifications in terms of wages, and this will not be deemed to be contrary to the obligation of equal treatment. Since equality can only be the case between employees with equal qualifications, position, and traits, the obligation of equal treatment is restricted for objective reasons such as education, age, seniority and subjective reasons such as diligence, productivity, merit, ability. The Employer may have an opportunity to pay different wages at all times based on these reasons, and in such a case there will be no discrimination. Also, in the precedent Supreme Court decisions, it is stated that “it is also necessary to accept that the employer’s payment of different wages, premiums or social rights among the workers, both objective and subjective qualifications, position, importance of duty, working conditions and similar reasons, shall not constitute a contradiction to the obligation of equal treatment,” which also supports the Employer shall not treat the employees with an absolute equity. As it is understood, in the case of a situation that justifies the employer to behave differently, if it is in accordance with the sense of justice to take different actions among its employees, it will not be considered contrary to the principle of equality. However, the employer cannot exercise this right in a purely arbitrary or malicious manner. The important point here is that the employer implements a right within the framework of good faith.
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