Business in Turkey

Gender Discrimination in Employment

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Struggle for equality between women and men has a long history. Although social conditions of women are improved in the past decades, it seems that there is a long way to achieve a satisfactory state from the point of women, according to many international institutions including the United Nation and the European Union.

In Turkey women partition rate in employment is quite low in comparison with the men. As per TUİK (Turkish Statistical Institute) 2019 report, 1 in 3 young girls between the ages of 15-49 (32,2%) are deprived of education and employment. This rate is 17,6% for men within the same age group. There are 30,9 million women over 15 years of age, and 20,4 million of them out of employment.

According to global gender report 2018 of World Economic Forum, Turkey has taken place at the130th between 140 countries from the point of gender equality. Considering the related legislation of the country this is a dreadful statistic data.

As it is seen below, Turkey is a party to many international agreements and conventions, some of which have precedence over domestic laws, aimed at struggling against discrimination between people as regard to religion, sect, race, color, age or sex, and such grounds. In our opinion gender inequality stems from sociological and cultural reason

PRINCIPLE OF EQUALITY INTURKISH LEGİSLATION

Turkey is a party to many international agreements and conventions, some of which have precedence over domestic laws, aimed at struggling against discrimination between people as regard to religion, sect, race, color, age or sex, and such grounds.

- Article 10 of Constitution sets forth the general framework of “Equality before the Law” and reads as follows;

"Everyone is equal before the law without distinction as to language, race, color, sex, political opinion, philosophical belief, religion and sect, or any such grounds ... No privilege shall be granted to any individual, family, group or class. State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all their proceedings."

- Equal treatment in employment is arranged in Article 5 of Labor Law No. 4857 which stipulates the employer’s obligation of equal treatment to employees.

- 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 and one working under an open-ended employment contract,

- 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 due to employee’s gender is not permissible,

- Application of special protective provisions due to the employee’s sex shall not justify paying him (her) a lower wage,

- If the employer violates the principal of equal treatment in the execution or termination of the employment relationship, the employee may demand compensation up to four months’ wages plus other claims of which he/she has been deprived.

- Burden of Proof in regard to the violation of the above stated provisions by the employer rests on the employee. The provisions of Article 20 are reserved. However, if the employee shows a strong likelihood of such a violation, the burden of proof that the alleged violation has not materialized shall rest on the employer.

- Female employee has the right to break her employment contract with just cause in case she has been harassed by the employer sexually. Or in cases where the women was sexually harassed by another employee or by third persons in the establishment, adequate measures were not taken although the employer was informed of such conduct.

PENAL SANCTIONS

The Penal Code No. 5237 criminalizes the “Discriminatory Behavior” and sets forth penalty of imprisonment for such behavior in Article 122.

“ARTICLE 122-(1) Any person who makes discrimination between individuals because of their racial, lingual, religious, sexual, political, philosophical belief or opinion, or for being supporters of different sects and therefore;

a) Prevents sale, transfer of movable or immovable property, or performance of a service, or benefiting from a service, or bounds employment or unemployment of a person to above listed reasons,
b) Refuses to deliver nutriments or to render a public service,
c) Refuses employment,
d) Prevents a person to perform an ordinary economic activity,
is sentenced to imprisonment from one year to three years.”

If an employer who employs someone or refuse to employ someone for reasons based upon the above said discriminative grounds he/she may be liable to imprisonment from one year to three years.

Result of an Employee’s Assault to other Employee

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As per Law no. 4857, Article 25/1-d, the employee is entitled to terminate the employment contract with just cause (before its expiry or without having to comply with the prescribed notice period), if the employee assaults or threatens the employer, a member of his family or a fellow employe.

However, we come across special cases in practice such as, what happens if the assaulting employee get wounded?

CAN EMPLOYER TERMINATE THE EMPLOYMENT CONTRACT OF EMPLOYEE İN TEMPORARY INCAPACITY?

As arule, when employe have a sickness report (temporary apacity) the employment contract is suspended and cannot be terminated while the sickness reports continues.

But, according to Supreme Court ruling, in case the sickness report is obtained as a result of being wounded when assoulting to an other employee, then employer may terminate the contract immediately.

The termination process must be finished within 6 working day according to Article 26, “The right to break the employment contract for the immoral, dishonourable or malicious behaviour of the other party may not be exercised after six working days of knowing the facts, and in any event after one year following the commission of the act, has elapsed. The “one year” statutory limitation shall not be applicable, however, if the employee has extracted material gains from the act concerned.

It should be bear in mind that, in case an employee has no fault in the event (not assaulting, only defending himself) his ontracts cannot be terminated.

OTHER REASONS FOR TERMINATING THE CONTRACT OF AN EMPLOYEE WHO HAS SICKNESS REPORT

The employer is also entitled to terminate the employment contract, even when the employee has sickness report, under following conditions,

  • If recovery from the illness or injury continues for more than six weeks beyond the employee's notice periods (set forth in article 17 of Labor Law No. 4857).
  • If the employee has contracted a disease or suffered an injury owing to his own deliberate act, loose living or drunkenness, and as a result is absent for three successive days or for more than five working days in any month.
  • In both cases employee's severance payment must be paid.

Last submission date of March 2018 declarations will be 24th April

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As is known SSI e-declarations should be submitted to SSI until the end of 23rd of the following month. In case the last submission date coincides with weekends and public holidays the declaration can be submitted on the next working day.

As April 23 is the National Sovereignty and Children’s Day, March SSI premiums can be submitted to SSI until the 24th of April, 23:59.

Retrospective Benefiting from Incentives is Possible! Apply until 31st May 2018

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Omniums bill (colloquially known bag law) No. 7103, issued in Official Gazette No. 30373, dated 27th March 2018, gives the opportunity to benefit from missed incentives retrospectively.  

In recent years Turkish government has launched many premium incentives and supports for encouraging businesses to create new employment.

In the past many employers missed this opportunity due to uncertainties about or lack of knowledge of the regulations, and for various reasons.

The article 70 of above mentioned Law has appended the Additional Article 17 to the Social Security and General Health Insurance Law No. 5510, giving a new chance to employers to get back the missed incentives.

Can a Retired Employee Entitle Severance Pay?

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Person working after retirement has the same rights regarding severance, notice pay and annual leave as the other employees have.

A retired employee may work against wage under an employment contract by paying social security support contribution.

In case such an employee’s employment contract terminated by employer without just cause, or he himself terminates the contract with valid reason he will be be entitled to severance and notice pay.

Also, the employees who are first time insured before 9th October 1999 may choose retirement with 3600 premium paid days in 15 years insurance period and are entitled to severance pay. These employees don’t need any right cause to terminate the employment contract. All they have to do to present a document to the employer from the social security agency proving that they have worked for the mentioned period and resign.

Severance Pay For Retired with 3600 Premium Days and 15 Years of Service

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Employees who are first time insured before 9th October 1999 may choose retirement with 3600 premium paid days in 15 years insurance period and are entitled to severance pay. These employees have to present a document to the employer from the social security agency proving that they have worked for the period.

Conditions for entitlement to severance pay are arranged in article 14 (still in effect) of Former Labor Law No. 1475.

Persons who completed the period of insurance except age (including 3600 days, 15years) to qualify for an old age pension and then voluntarily leave the job will receive severance pay.

RETIREMENT CONDITION BY 3600 PREMIUM DAYS AND 15 YEARS

By completing 3600 premium days and 15 years of insurance period until 23rd May 2002; women at the age of 50 and men at the age of 55 can be retired.

After 24th May 2002 a gradual system is applied.

Persons completed the 3600 premium days within 15 years insurance period between the dates:

24.05.2002-23.05.2005 men 56 women 52,

24.05.2005-23.05.2008 men 57, women 54

24.05.2008-23.05.2011 men 58, women 56,

24.05.2011-23.05.2014 men 59, women 58,

after 24.05.2014 men 60 women 58 may be retired.

HOW MANY TIMES “3600 DAYS/ 15YEARS” CAN BE USED FOR SEVERANCE PAY?

In case the employee has completed the mentioned period and days he doesn’t have to wait the above said ages. It would be enough for the employee to get a document from SSI proving the situation and resign to receive severance payment, i.e. he doesn’t have to actually retire.

Until the employee satisfies the age condition and get actually retired, he can;

  • continue to work in the same or other workplaces, and
  • claim severance when he leaves the employment by submitting the above said document from SSI, provided that he completed one year of service in the workplace
  • can use this entitlement as many as possible.

There will be no notice period for this kind of employees and no notice pay is paid.

Can a Resigned Employee be Paid Severance?

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Conditions for entitlement to severance pay are arranged in article 14 (still in effect) of Former Labor Law No. 1475; and resignation of an employee isn’t one of the reasons for entitlement. For detailed information please visit our website:

http://turkishlaborlaw.com/faq/311-conditions-of-severance-pay-in-turkey

In practice employers may choose to make payment (while there is no obligation to pay it) to a resigned employee as a gratitude for his ex-services, and they usually wrongly call it severance pay. However, any payment made under any name for a resigned employee must be treated differently than severance pay from the point of SSI premium and income tax liability.

How to Calculate Overtime Work and Works at Extra Hours?

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Overtime is the work which exceeds forty-five hours a week, and remunerated in hourly basis with higher rates.

As per the Labor Law, No: 4587, Article 41, overtime work may be performed for purposes such as the country’s interest, the nature of the operation or the need to increase output.

In cases where the weekly working time has been set by contract at less than forty-five hours, the work last up to forty-five hours weekly considered as works at extra hours.

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