Turkish Labor Law
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On the occasion of International Working Women’s Day, we would like to present the provisions concerning women in Turkish Labor Legislation briefly to your attention. Subject of this first part will be the “Principle of Equal Treatment” and “Protective Provisions” concerning female employees.
PRINCIPLE OF EQUAL TREATMENT
Turkey is a party to the Convention on the Elimination of All Forms of Discrimination against Women adopted in 1979 by the UN General Assembly that defines the discrimination and the actions to be taken to end it.
Also, Article 10 of Constitution of the Republic of Turkey sets forth the principle Equality before the Law;
“All individuals are equal without any discrimination before the law, irrespective of language, race, color, sex, political opinion, philosophical belief, religion and sect, or any such considerations. Men and women have equal rights and the State is responsible to implement these rights…”
Equal treatment in employment and occupation is arranged in Article 5 of Labor Law No. 4857 which stipulates the employer’s obligation of equal treatment to employees regardless of their gender.
– No discrimination based on sex is permissible in the employment relationship.
– Except for biological reasons or reasons related to the nature of the job, the employer cannot make any discrimination, either directly or indirectly, against an employee in the conclusion, conditions, execution and termination of her employment contract due to the employee’s sex or maternity,
– Application of special protective provisions for female employees shall not justify paying them 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 she has been deprived.
– Burden of proof in regard to the violation of the equal treatment by the employer rests on the employee. – However, if the employee shows a strong likelihood of such a violation, the burden of proof that the alleged violation has not materialized rests on the employer.
Also, the Penal Code Nr. 5237 criminalizes the “Discriminatory Behavior” and sets forth penalty of imprisonment for such behavior in Article 122. If an employer who employs someone or refuse to employ someone for reasons based upon discriminative grounds he/she may be liable to imprisonment from one year to three years.
PROTECTIVE PROVISIONS: RESTRICTED WORKS
Article 50 of the Constitution reads as follows; “No one shall be required to perform work unsuited to his age, sex, and capacity. Minors, women and persons with physical or mental disabilities, shall enjoy special protection with regard to working conditions.”
In line with the Constitution, Labor Law 4857 and the Regulations include some provisions as regard to banned and restricted work for women;
- Prohibition on underground or underwater work: Women cannot be employed on underground or underwater work like in mines, cable-laying and the construction of sewers and tunnels.
- Regulation on Employing Female Workers in Night Shifts:
– Overtime Ban for Women on Night Shifts; Female employees, 18 or older, can be employed on night shifts, on condition that the working time cannot be over 7.5 hours per day. Pregnant and breast feeding women cannot be worked on night shift.
– Providing Transport: For the workplaces established out of municipal boundaries or the ones for which public transport may not be convenient, employer should provide convenient transport for women on night shift.
– Medical Report: For employing women in night shift a medical report is required.
– Married Couples: If the husband of a female employee is also working on night shift, whether in the same or different workplace, women may request that night shift to be arranged as not to coincide with the husband’s. In case the couple is working in the same workplace women’s request to work on the same night shift with her husband should be met by employer within the bounds of possibility. - Regulation on Heavy and Dangerous Works: Annex 1 of said Regulation lists the prohibited work for women.
- Women cannot be employed on heavy and dangerous works during their menstruation period.
Sexual harassment:
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.
In the second part we will be presenting the provisions concerning working mothers.
