The Constitutional Court reached a decision in the Burcu Reis case (“Decision”) dated 28 December 2021 with application number 2016/5824 that was published in the Official Gazette dated 27 January 2022. The court ruled that the prohibition of discrimination in connection with the right to respect for family life was violated since the applicant had not been provided with a day care centre opportunity that other women working in the same workplace had been given. The Decision may lead to significant changes in labor law precedents.
Summary of the Decision
The applicant sent her child to a private day-care centre because she was among a number of employees who were not provided with day-care centre opportunities for their children in their workplace, while some other employees were. Therefore, she filed a lawsuit demanding that she be paid both compensation for discrimination and the fees paid to the day-care centre.
The court of the first instance accepted the applicant’s claim for compensation for discrimination but rejected her request for the fees paid to the day-care centre. As a result of an appeal examination, the Court of Cassation reversed the decision of the court of the first instance on the grounds that the applicant could not prove that she was subjected to discrimination for reasons such as language, race, gender, political opinion, philosophical belief, religion and sect listed in Article 5 of the Labor Law No. 4857 (“Law”) and stated that her claim for compensation for discrimination should be rejected. The court of the first instance also decided to reject all requests in line with the decision of reversal and the decision was upheld by the Court of Cassation and finalized.
However, the Constitutional Court decided that the prohibition of discrimination in connection with the right to respect for family life had been violated because there was a clear difference between women employees in a similar condition in terms of benefiting from day-care centres. The burden of proving that the difference in treatment was based on an objective and reasonable cause was on the employer, who did not provide any explanation in this regard.
Employers’ Equal Treatment Obligation
Employment agreements provide employers and employees with mutual obligations. In this context, while employees have obligations such as working regularly, loyalty, and following regulations and instructions, employers also have liabilities to employees, especially in terms of paying wages, duty of care and equal treatment.
Article 10 of the Constitution states that everyone is equal before the law and that no one can be subject to any discriminatory act. The principle of equality regulated in the Constitution aims to prevent arbitrariness by stating that the state is obliged to treat citizens objectively and equally. However, the regulation not only covers public authorities but also private individuals, and the state also has a positive obligation to prevent violations of the prohibition of discrimination.
The most important criterion to be considered in determining if there is discrimination in a particular case is whether the persons being compared are under the same conditions and the existence of a reasonable cause justifying any difference in their treatment. Thus, it is not possible to set an absolute equality between persons who are not under the same conditions. According to the Constitutional Court, the concept of “equality” refers to the requirement that individuals under the same conditions are not treated differently without an objective and reasonable justification. The principle of equality in the Law limits employers by prohibiting them from making arbitrary distinctions among their employees. However, this principle does not mean that every employee should be treated the same, which means that employers are not obliged to constitute an absolute equality in workplaces. The important matter is that employers treat employees with the same qualifications and working in the same or equal (similar) jobs equally. In cases where employers have reasonable grounds to justify different treatment, there will be no violation of the obligation of equal treatment.
When considering whether persons are under the same conditions or not, there is an absolute prohibition on discrimination based on language, race, colour, gender, political opinion, philosophical belief, religion, sect, or similar reasons.
In order not to discriminate in business life, the principle of equal treatment is specified in Article 5 of the Law and employers are obliged to act equally. In the aforementioned article, it is stated that:
- no discrimination can be made based on language, race, colour, gender, disability, political thought, philosophical belief, religion and sect and similar reasons,
- unless there is a material reason, no differential treatment can be made between a full-time employee and a part-time employee, and a fixed-term employee and an indefinite-term employee,
- unless biological or work-related reasons make it mandatory, no different action can be taken due to gender or pregnancy,
- if an employer violates these prohibitions, employees may demand appropriate compensation of up to four months’ wages and the rights that they have been deprived of due to discrimination.
Regardless of the aforementioned obligations, employers are obliged to treat employees equally within the framework of universal principles of law, international conventions to which Turkey is a party, and the Constitution. Therefore, aside from the reasons listed above and similar reasons, any different treatment by employers without a reasonable cause will constitute a violation of the equal treatment obligation.
In the event that the prohibition of discrimination is violated, besides employees’ compensation claims, clauses (e) and (f) of Article 24/II of the Law also give employees the right of termination depending on the reason for the discrimination. Additionally, compensation for discrimination is subject to discrimination based on the above-mentioned reasons, pursuant to the precedents of the Court of Cassation so far.
As stated above, in cases of discrimination by employers for a reason similar to the situations specified in Article 5 of the Law, employers are obliged to pay compensation (known as “compensation for discrimination” in practice) of up to four months’ wages upon the request of employees.
Pursuant to the precedents of the Court of Cassation so far, compensation for discrimination can be ruled in cases of differential treatment based on language, race, colour, gender, disability, political opinion, philosophical belief, religion and sect and similar reasons as specified in the Law, but not in all cases of differential treatment of employees. (For the precedent decisions, see decisions of 9th Civil Chamber of the Court of Cassation with file no. 2016/19747, decision no. 2019/17312; file no. 2020/4817, decision no. 2021/2405 and file no. 2018/7135, decision no. 2021/920). However, it is also stated in the Court of Cassation's decisions that situations regulated in the Law are not the numerus clausus (limited number) principle and that similar situations listed in the article will cause employers to be liable for discrimination compensation (for example, in its decision dated 25 February 2020, with file no. 2016/1531 and decision no. 2020/202, the General Assembly of the Court of Cassation stated that if employers do not pay the wages of employees who have initiated enforcement proceedings against them, but pay their wages to other employees, discrimination compensation can be ruled.)
Since there is no special regulation in the calculation of discrimination compensation, the basic wage of employees is taken into account. While the statute of limitations for this compensation was 10 years, it was reduced to five years under Additional Article 3 added to the Law with Law No. 7036. Within this scope, legal action can be initiated until 25 October 2022 for discrimination compensation claims that were due before 25 October 2017, the date of entry into force of Law No. 7036, and whose statute of limitations exceeds five years as of the effective date. However, since the statute of limitations ceased between 13 May 2020 and 15 June 2020, this scope has been extended until 27 January 2023.
Legal interest will accrue from the date of default by employers, since there is no special provision regarding the interest accrued on discrimination compensation,
Comparing the Constitutional Court Decision with Court of Cassation Precedents
As we explained above, the Constitutional Court’s practices on compensation for discrimination do not comply with the existing precedents of the Court of Cassation. When comparing the Decision with the precedents of the Court of Cassation, it can be seen that there are contradictions on two important issues. One is the reasons for discrimination compensation, and the other is the burden of proof.
The Court of Cassation seeks that in order for differential treatment to cause discrimination compensation liability, it is not limited to those listed in Article 5 of the Law, but it arises from issues similar to the reasons in the article. On the other hand, in the Decision, the Constitutional Court stated that:
- the guarantees arising from the prohibition of discrimination would come to the fore in cases of different treatment to those whose legal conditions are similar,
- hence, a similar condition and different treatment need to be shown by employees who claim to have been discriminated against,
- there is no burden of proof in cases where the existence of different treatment can be understood at first glance,
- if the differential treatment is understood at first glance, an employer’s purpose for the differential treatment does not need to be proved by employees.
The Constitutional Court does not seek the purpose that the Court of Cassation requires in cases where different treatment is understood at first glance, and it is stated that due to the violation of the prohibition of discrimination, discrimination compensation should be ordered. However, despite the emphasis in the Decision of the expression “in terms of different treatments that can be understood at first glance,” it was also stated that the reason for the difference should be based on an objective and reasonable cause, and in the absence of such a reason, the prohibition of discrimination should be deemed to have been violated. In this scope, it is possible to say that the criterion of “purpose” in the differential treatment sought by the Court of Cassation has been largely abolished by the Constitutional Court.
Another important part of the Decision is related to the burden of proof. In accordance with the formal logic of procedural law, the burden of proof is on the party claiming as a rule. In this scope, the Court of Cassation states that in addition to acts subject to discrimination, employees must also prove the purpose on which the discrimination is based. On the other hand, the Constitutional Court has assessed the burden of proof differently since it stated in the Decision that the purpose is not important unless there is a reasonable cause to justify the different treatment. Accordingly, if employees prove the different treatment of individuals who are under similar conditions in a workplace, the burden of proof will be on employers who will have to present a reasonable justification for the different treatment. Otherwise, discrimination compensation may be ordered against employers.
Although discrimination compensation is typically alleged in the proceedings, it is not often observed that this compensation is ordered. The main reason is that employees are unable to prove an employer’s purpose for differential treatment. Certain sensitive criteria are listed in Article 5 of the Law and discrimination based on these criteria or similar reasons is sought.
Contrary to the Court of Cassation precedents, the Constitutional Court stated that if it is revealed that persons under similar conditions are treated differently, employers should put forward a reasonable cause for this different treatment. As it can be seen, the criterion regarding employers’ purpose, which employees are obliged to prove, has been abolished. In practice, the most common issue in such cases and decisions is that people under the same conditions are given different wages. While the Court of Cassation has rejected the request because employees could not show employers’ reasons for differential treatment in these disputes, it will now be necessary for employers to prove a reasonable cause for the differential treatment. Employers, on the other hand, will need to demonstrate that this difference exists for reasons such as the education of the individuals concerned, the nature of the work they do, their equipment, and their seniority.
Although the decision prevents arbitrariness in the workplace, it also restricts the management right of employers. Employers cannot easily prove reasons for different practices developed to reflect the differences in employees’ capabilities, performance and productivity. Therefore, it is important for employers to base any differential treatment on valid legal reasons, and to record all evidence validating the reasons for such treatment to strengthen their position in the event of a dispute.
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