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08 March 2024

Gender Equality in the Perspective of Turkish Labour Law

Author Taylan Ege Günel, Category Work Life

Gender Equality in the Perspective of Turkish Labour Law

    Although the active role of women in working life and employment rates have been increasing in recent years, it is extremely important to prevent the problems experienced by women employees due to women's responsibilities in family life and some physical requirements. As a matter of fact, with sociocultural and technological developments as well as economic changes, it is of critical importance that women employees are not discriminated against due to their active role in business life and that women's health and safety is not interrupted. It should be noted that which is a guide due to the hierarchy of norms Article 50 of The Constitution of the Republic of Turkey ('Constitution'),

    "No one shall be required to perform work unsuited to his/her age, sex, and capacity. Minors, women, and physically and mentally disabled persons, shall enjoy special protection with regard to working conditions.”

    statements are included.

    Accordingly, within the scope of both The Labour Law No. 4857 ('Labour Law') and Law On Occupational Health and Safety No. 6331 ('Occupational Safety Law'), some specific regulations have been made for women employees, so that both local legislation and precedent case law will be examined in this article.

    1. Regulations for Women Under Turkish Labor Law

    First of all, it should be noted that some specific regulations for women employees within the scope of Turkish Labour Law should not be considered within the scope of positive discrimination in any way. As a matter of fact, considering that the principle of equality prevails in law regardless of gender in general, but absolute equality can also bring about an equality problem, it should be accepted that remedial provisions in favor of women employees cannot be considered as a privilege.

    1.1. Prohibition of Discrimination

    In order to prevent the abuse of the employer's management right and to prevent discrimination, the labour law has adopted the principle of equal treatment. As a matter of fact, Article 5 of the Labour Law,

    "No discrimination based on language, race, colour, sex, disability, political opinion, philosophical belief, religion and sect and similar reasons shall be made in the employment relationship.

    The employer shall not treat an employee differently, directly or indirectly, on the grounds of sex or pregnancy in the conclusion, conditions, execution and termination of an employment contract, unless the employer is obliged to do so for biological reasons or reasons relating to the nature of the work.

    In the event that the provisions of the above paragraph are violated in the employment relationship or its termination, the employee may claim his/her deprived rights in addition to an appropriate compensation in the amount of up to four months' wages."

    it includes this expressions.

    Thus, it is regulated within the scope of the labour law that the employer cannot take a different approach due to gender or pregnancy from the establishment of an employment contract until its termination, unless the necessity of the job makes it mandatory. In addition, it is clearly regulated by the legislator that the damages of the employee can be compensated in case of violation of the obligation to treat equally, and the provision is intended to be a deterrent.

    1.2. Prohibition of Employment of Women Employees

    Within the scope of the labour law, the work prohibited for women employees is also regulated and these prohibitions are generally referred to as "prohibition of work on the ground and underwater", "prohibition of work in heavy and dangerous work" and "prohibition of night work". For example, Article 72 of the Labour Law,

    "It is forbidden to employ men under the age of eighteen and women of all ages in underground or underwater works such as mines, cable laying, sewerage and tunnel construction."

    Article 73 of the Labour Law,

    "The procedures and principles regarding the employment of female workers over the age of eighteen in night shifts shall be set out in a regulation to be prepared by the Ministry of Labour and Social Security in consultation with the Ministry of Health."

    has regulated this provision.

    As a result, although the employment of women seems to be limited with these regulations, it is quite obvious that these prohibitions aim to ensure the health and safety of women and that these regulations do not harm the principle of equality.

    1.3. Protective Arrangements for Pregnant and Recently Given Birth Employees

    In the light of the Labour Law, a number of protective provisions have been established for pregnant and recently delivered employees and it is aimed to protect the best interests of the woman and the child. For example, the Work Conditions of Pregnant or Nursing Women, Lactation Rooms and Child Care Units Regulation ('Regulation') has taken into consideration the health and safety of the pregnant and new-born employee and the best interests of the child. As a matter of fact, the relevant Regulation aims to take measures to support the health and safety and development of pregnant, recently givin births or nursing employees in the workplace, to determine what kind of work is prohibited during which periods and what conditions and procedures will be complied with in the jobs where they can be employed, and to determine how lactation rooms or childcare facilities will be established and what conditions they will have. On the other hand, Article 74 of the Labour Law prohibits the employment of women employees during pregnancy and after childbirth for a certain period of time, thus protecting the health of women employees and the children to be born. As a matter of fact, the relevant article is clear,

    "It is essential that female employees are not employed for a total period of sixteen weeks, eight weeks before and eight weeks after childbirth. In case of multiple pregnancies, two weeks are added to the eight-week period before the birth.

    The periods stipulated above can be increased if necessary before and after the birth according to the health condition of the employee and the nature of the work. These periods shall be specified by a doctor's report. During pregnancy, the female employee shall be given paid leave for periodic controls. If deemed necessary with a doctor's report, the pregnant female employee is employed in lighter work suitable for her health. In this case, the wage of the worker shall not be reduced.

    Upon request, the female employee shall be granted unpaid leave for up to six months after the completion of sixteen weeks or after eighteen weeks in case of multiple pregnancy. This leave shall be granted to one of the spouses or the adopter in case of adoption of a child under three years of age. This period is not taken into account in the calculation of annual paid leave right. Female employees shall be given a total of one and a half hours of milk leave per day for breastfeeding their children under one year of age. The worker himself determines the hours between which this period will be used and how many times it will be divided. This period shall be counted from the daily working time. The provisions of this article shall apply to all employees working under an employment contract, whether or not covered by this Law."

    provisions, and it was emphasized that it is essential to apply it to all kinds of employees.

    As explained above, it is clearly regulated under the Law that gender or pregnancy will not constitute a valid reason for termination. Likewise, it is essential that the woman is not employed before the birth in case of pregnancy, and the reason for not working during these periods will not constitute a valid reason for termination to the employer.

    2. Prevention of Gender Discrimination at Work and Precedent Judicial Decisions

    In addition to the Constitution and Labour Law, the European Convention on Human Rights, to which Turkey is a party, and the International Labour Organization guarantee the prohibition of discrimination, and some non-governmental organisations draw attention to gender inequality in business life with their researches. As a matter of fact, many international studies draw particular attention to this problem since gender inequality in working life generally arises due to many sociocultural and economic reasons. Since gender inequality in working life is entrenched with some stereotypes and sometimes unconsciously accepted as normal, it is tried to draw attention to these problems by defining them. As a matter of fact, the problems experienced are clustered with certain definitions such as "horizontal differentiation" explaining the occupational or sectoral segregation according to gender, "glass ceiling" explaining the unexplained obstacles that prevent women employees from being promoted by ignoring their achievements, and "sticky floor" explaining the fixation of women employees in permanent jobs. Thus, it should be underlined once again that there is a need for both legal regulations and precedent judicial decisions in order to eliminate the gender inequality that exists consciously or unconsciously in working life.

    As explained above, as a result of the sociological and psychological effects of gender discrimination, which is sometimes unconsciously made as a negative consequence of some stereotypes, it can be clearly seen that these issues are also carried to the judicial stage. As a matter of fact, gender discrimination in business life is explicitly prohibited by international and national regulations and agreements. Due to the fact that the behaviours contrary to this prohibition are brought to the judiciary, the position of the parties is of critical importance in terms of the burden of proof of the concrete case. In this respect, it should be evaluated that Article 5 of the Labour Law is explicit,

    "the employee shall have the burden of proving that the employer has breached the provisions of the preceding paragraph. However, where the employee establishes a circumstance which strongly indicates the possibility of a breach, the employer bears the burden of proving that such a breach does not exist."

    The Court states that the burden of proof in case of violation of the prohibition of discrimination is shifted to create an exception to the general rules of law. As an example, the decision of the 9th Civil Chamber of the Supreme Court of The Republic of Turkey with file no 2016/1423 and decision no 2019/11167,

    “The sanction of the employer's violation of the obligation of equal treatment is regulated in the sixth paragraph of Article 5 of the aforementioned Law. According to the said provision, the employee has the opportunity to claim the rights of which he has been deprived, in addition to a wage equal to four months' wages. Since the text of the said paragraph is of a mandatory nature, the rules of the contract that are contrary to the said provision are invalid. It is stated that the plaintiff employee did not have any work that caused negativity in the workplace, on the contrary, her work was appreciated by her manager, the plaintiff reported her pregnancy to the defendant employer with a hospital letter dated 04.07.2014, then in the letter dated 05.07.2014 written by the plaintiff's manager to the human resources department of the workplace, it was stated that the plaintiff was not wanted to work with him on the grounds that he could not get efficiency from the plaintiff, thereupon, the employer terminated the employment contract on 07.07.2014 It is understood that it was terminated on the date.”

    Similarly, in the decision of the 9th Civil Chamber of the Supreme Court with file no 2017/16279 and decision no 2020/10415,

    “According to the scope of the file, there is no dispute that the claimant was paid less wages compared to the other transfermen working in the workplace. It is understood from the file content and especially from the statements of the defendant employer's witnesses that the plaintiff is a successful worker in the workplace, that the plaintiff does the same job as the other transfer workers, and that there is no inadequacy in his ability or performance. According to the available evidence in the file, although the plaintiff could not prove his claim of gender discrimination, the employer's failure to pay equal pay for equal work is a violation of the equal treatment obligation and the conditions for discrimination compensation have been met. Taking into account the working period of the plaintiff, the court should award discrimination compensation within the scope of Article 5 of the aforementioned law, but it is erroneous to decide to reject the compensation claim. Accordingly, the plaintiff's differential wages should also be calculated and judged."

    the provision is included.

    3. Conclusion

    As a whole, Labour Law is obliged to observe the rights of both parties and to ensure equality between equals while regulating the relationship between employee and employer. As explained above, some of the regulations aiming to eliminate the inequality between the sexes have been made by the legislator by considering gender norms and some of them by considering family obligations, thus aiming to ensure that women take an active role in working life. As a reflection of this, apart from the regulations within the scope of the Labour Law, Social Security Law, General Public Health Law, Occupational Health and Safety Law, Trade Unions and Collective Bargaining Law, Social Security and General Health Insurance Law, the facilitation of working life practices for employees and employers by the subjects of working life and the supervision of the implementation of protective regulations by the legal authorities are also extremely important for the effective presence of women in working life.

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