EVALUATION OF THE LAW OF HUMAN RIGHTS AND EQUALITY INSTITUTION OF TURKEY IN TERMS OF LABOUR LAW

Law of Human Rights and Equality Institution of Turkey No. 6701 was enacted on 06.04.2016 and published at the Official Gazette dated 20.04.2016. Pursuant to this law all Official and Private legal entities, including Public Authorities have been imposed with the obligation of treating equally to those being benefiting or benefiting from the services provided due to the activities being carried out and the non discrimination thereof. Within this respect in order to monitor and control the mentioned obligations, the establishment of Human Rights and Equality Institution of Turkey has been provided and this Institution has been empowered to impose administrative sanction upon those violating the prohibition.

Article 3 of the Law expressly provides that everybody is equal at benefiting from the legally vested rights. On the other hand the discrimination based on gender, race, colour, language, religion, belief, sect, philosophical and political view, ethnic origin, fortune, birth, marital status, medical condition, disability and age is clearly prohibited.

As the effect of this law upon labour law is evaluated, the most important innovation it has brought is the legally definition of the concept of mobbing for the first time. Neither labour law nor criminal law provides any provision clearly regulating the concept of mobbing at either labour law or criminal law. However this law provides it by defining intimidation and psychological harassment at office. 

Another regulation of this law concerning Labour Law finds its own place at sixth article. According to this article; Employer or the person authorised by Employer cannot make any discrimination against; employee of employer or the person applying with this purpose, the one present at an office in order to gain practical work experience  or the person applying with this purpose and the person who wishes to acquire information upon office or work in order to work with any capacity or gain practical work experience, at any process regarding the work, including the processes of information, application, selection criteria, recruitment conditions and working and the termination of working.

According to these regulations, in case of an application with respect to working and termination of working or obtaining information, employer is prohibited from making discrimination based on gender, race, colour, language, religion, belief, sect, philosophical and political view, ethnic origin, fortune, birth, marital status, medical condition, disability and age. Furthermore the law expressly provides that the employment application cannot be rejected with the grounds of pregnancy, maternity and child care and tries to provide a security for the difficulties experienced by women at business life. These discrimination prohibitions are valid for all stages of employment, including recruitment, promotion, trainings provided at the office and the obtained social rights and most importantly the job announcements. Employers can no longer use expressions at job announcements that may include discrimination in a manner in contradiction with this law.

However, the exceptional cases not constituting discrimination has also been enumerated at the law. The first of these exceptions is that in case of existence of compulsory professional requirements at employment and self employment, proportional discrimination in compliance with purpose is allowed. The states requiring the employment of a certain gender are also enumerated as exception at law. The determination and application of age limits in course of recruitment due to the requirements of service, discrimination based on age is possible provided that it is proportionate to necessity and purpose.

Every real and legal person alleging to incurred harm from the violation of discrimination prohibition may apply to Human Rights and Equality Institution. Applications are free of charge and the effective exercise of the application right can be by no means prevented. Prior to the application to Institution, those concerned requests from the concerned party to correct the practice alleged to be in contradiction with this Law. In case of rejection of these requests or where they are not replied within thirty days, Institution may be applied. However in case of existence of the possibility of any irrecoverable damages, Institution may accept the application without this condition.

The applications made to Institution within the period of filing a lawsuit shall suspend the period of filing lawsuit.

Institution is obliged to render decision with respect to violation examinations within three months following the application date. In case of violation of the prohibition of discrimination, the public institutions and organizations, real persons and private law legal persons liable for this shall be punished with administrative fine from TL1000 to TL15000. This administrative fine may be converted to warning only for once.

Since the regulations upon implementation of this law are provided to be entered into force within 6 months following the date of first meeting date, the applications are estimated to be started approximately six months later.

Yeliz DOĞAN – Attorney At Law

MAYIS 2016

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