The Labour Code No. 4857, the primary legislation of Turkish Labour Law, alongside regulating several provisions for the protection of the employee, also contains provisions prohibiting employers from discriminating among their employees.
In accordance with the Article 5 of the Labour Code No. 4857, discrimination based on language, race, color, gender, disability, political opinion, philosophical belief, religion and sect and similar reasons is prohibited in the employment relationship. Although the primary addressee of the prohibition is the employer, the prohibition also includes employer representatives acting on behalf of the employer.
Prohibition of discrimination includes several aspects within its scope. In this context, the employer cannot treat a part-time employee differently than a full-time employee, or a fixed-term employee versus an indefinite-term employee, unless there are fundamental reasons.
The employer cannot, directly or indirectly, take any different action against an employee due to gender or pregnancy, in the conclusion of an employment contract, the establishment of its conditions, its implementation and termination, unless biological or reasons related to the nature of the work make it mandatory.
A lower wage cannot be agreed for a job of the same or equal value because of gender.
The application of special protective provisions due to the gender of the worker does not justify the application of a lower wage.
In case of violation of the above-mentioned prohibitions in the employment relationship or its termination, the employee has the right to demand the rights that he was deprived of, in addition to an appropriate compensation in the amount of up to four months’ wages. The compensation in question is called “discrimination compensation”. Likewise, the employee’s right to claim additional compensation for “discrimination for union reasons” is reserved, in accordance with the provisions of the Article 31 of the Trade Union Law No. 2821.
The employee is obliged to prove that the employer violated the prohibition of discrimination. On the other hand, when the employee presents a situation that strongly indicates the possibility of a violation of the prohibition of discrimination, the employer will be obliged to prove that such a violation does not exist.
In contrast, in accordance with the Article 20 of Code No. 4857, if the employment contract of an employee who benefits from “job security” provisions is terminated, the obligation to prove that the termination is based on a valid reason belongs to the employer. If the employee claims that the termination is based on another reason, he/she is obliged to prove this claim.
