Introduction
Turkish law on gender equality
Case law on gender equality
Ongoing challenges
Comment


Introduction

Gender equality and the inclusion of women in the labour market are considered essential tools for nations to reach their full potential and ensure sustainable development, growth and a prosperous life. However, the full implementation of this goal constitutes a challenge for many states, regardless of their level of development. The Global Gender Gap Report of 2022, published by the World Economic Forum, suggests that it will take another 132 years for the gender gap to reach full parity globally.

The situation in Turkey is no less challenging – Turkey ranked 124th out of 146 countries in the 2022 Global Gender Gap Report. A report submitted to the Committee on the Elimination of Discrimination against Women (CEDAW) asserts that, since the signing of the CEDAW, Turkey has failed to progress in several fields concerning the prevention of discrimination against women and the implementation of social gender equality. Further, a survey carried out by Turkish research company BAREM and the Worldwide Independent Network of Market Research and Opinion Poll indicated that only 54% of the 33,326 individuals from 39 countries surveyed believed gender equality is ensured in workplaces in Turkey. This makes Turkey 30th out of 39 countries based on this metric.

Turkish law on gender equality

Prevention of gender-based discrimination is acknowledged both in local legislation and in international conventions undersigned by Turkey that contain provisions which aim to ensure gender equality. The following are directly applicable under article 90 of the Turkish Constitution:

  • the Universal Declaration of Human Rights;
  • the European Convention on Human Rights;
  • CEDAW; and
  • the European Social Charter.

Protection against gender-based discrimination is ensured at a constitutional level. According to article 10 of the Turkish Constitution, everyone is equal in the eyes of the law, irrespective of their:

  • language;
  • race;
  • skin colour;
  • gender;
  • disability;
  • political view;
  • philosophical beliefs;
  • religion; or
  • sect.

Men and women have equal rights, and the state is obliged to ensure this equality.

In parallel, article 5 of the Turkish Labour Act (TLA) No. 4857 provides that employers cannot discriminate against employees on the grounds of the above factors. Having set the prohibition against discrimination in general, article 5 also specifically prohibits different treatment based on gender and pregnancy in terms of:

  • the conclusion of employment contracts;
  • the determination and implementation of the terms and conditions of employment contracts; and
  • termination.

Paying an employee a lower salary because of their gender is also prohibited under the same article. The TLA sets out that breaches of the principle of equal treatment will result in an administrative fine, the amount of which in 2023 is 885 Turkish lira (approximately £39).

Article 6 of the Act on Human Rights and Equality Institution of Turkey No. 6701 (Law No. 6701) stipulates that employers or their representatives cannot discriminate against the following in employment-related processes:

  • employees or candidates;
  • those who are at the workplace to gain applied professional experience or who apply for this purpose; and
  • those request information about a workplace or work in order to gain applied professional experience or work under any title.

"Employment-related processes" include processes relating to:

  • requesting information;
  • applications;
  • choice criteria;
  • recruitment requirements; and
  • employment and termination.

This also covers:

  • job ads;
  • workplaces;
  • work conditions;
  • professional guidance;
  • access to any degrees and types of retraining and vocational education;
  • access to any degrees of professional hierarchy and professional promotion;
  • in-service training; and
  • social benefits.

Article 6 also forbids employers or their representatives from rejecting job applications on the grounds of:

  • pregnancy;
  • maternity; and/or
  • childcare.

Article 25 of Law No. 6701 sets out that an administrative fine (between 5,958 Turkish lira (approximately £262) and 89,571 Turkish lira (approximately £3940) in 2023) will apply to breaches of the discrimination ban. The exact amount will depend on:

  • the significance of the impact and result of the breach;
  • the offender's financial status; and
  • whether the offender has carried out discriminatory acts in the past.

The Council of Human Rights and Equality Institution of Turkey shall file a criminal complaint if it detects a breach of the discrimination ban that constitutes a criminal offence.

Case law on gender equality

Certain precedents of the Court of Cassation have also covered discrimination against women in the workplace, especially where the employee in question is pregnant.

In one case, the employer terminated a female employee's employment contract on grounds of redundancy. The employee argued she had been terminated for having given birth very recently. The 22nd Civil Chamber of the Court of Cassation held that the employee had strong evidence – such as a doctor's report and witness statements – which indicated that she had been exposed to gender-based discrimination, and the employer had failed to prove otherwise. The employer had failed to prove that its work volume had decreased, and the employee had solid and convincing evidence that she had been made redundant. The 22nd Civil Chamber of the Court of Cassation awarded the employee discrimination compensation.(1)

In another case, the 9th Civil Chamber of the Court of Cassation reviewed charts showing the distribution of employees based on their gender and marital status when examining discrimination claims. There were 72 married and 107 single female employees out of a total of 179 female employees. In one-and-a-half years, the total number of female employees increased to 248, but the number of married female employees reduced to 65. The Court of Cassation concluded that the employer had offered the employee in question an unacceptably low position after her maternity leave and had terminated her employment contract for refusing this offer. The Court awarded the employee discrimination compensation.(2)

Ongoing challenges

Despite being protected under the Turkish Constitution and other laws, and being handled diligently by the courts, gender equality is still not fully established in practice for several reasons. For instance, the amounts of administrative fines appear to be insufficient in discouraging employers. The lack of effective sanctions is a problem that needs to be addressed on the employer side. On the other hand, commitment to patriarchal traditions and a settled mindset is a problem that needs to be addressed on the employee side. Employees' lack of proper knowledge of their rights in combatting gender-based discrimination in workplaces also holds employees back from claiming their rights.

Turkey's withdrawal from the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence in 2021 was severely criticised.(3) The convention was considered an essential legal instrument for combatting all kinds of violence against women, including psychological and physical abuse at work. Indeed, this development has been construed as step back from ensuring the desired level of protection of gender equality in Turkey.

Comment

Without a doubt, the prevention of gender-based discrimination in the workplace bears a broad social and economic importance. However, this common goal can only be achieved by means of the integrated combination of a supportive legal system, improved awareness, and more effective sanctions and proper enforcement. In this regard, Turkey can ensure more rapid and active progress is made in the prevention of gender-based discrimination in the workplace by opening the issue up for discussion more openly and widely, both on a social and legal basis.

For further information on this topic please contact Asena Aytuğ Keser or Kardelen Özden at Gün + Partners by telephone (+90 212 354 00 00) or email ([email protected] or [email protected] ). The Gün + Partners website can be accessed at www.gun.av.tr.

Endnotes

(1) 22nd Civil Chamber of the Court of Cassation, E 2015/15750 K 2015/20058, T 9 June 2015.

(2) 9th Civil Chamber of the Court of Cassation, E 2009/19835 K 2011/46440, T 29 November 2011.

(3) The convention was terminated in respect of Turkey through Presidential Decree No. 3718, dated 19 March 2021, published in the Official Gazette (31429) on 20 March 2021.