At the present day, justice and equality are the very important inextricable notions. The importance of principle of equity and non-discrimination in modern labour law is based on these two notions. Because of these notions has became the essential principle in labour law, the employer has to take the principle of equity as a base.
By new Labour Act No. 4857, the principle of equality and non-discrimination is inserted as a new chapter to Turkish employment law. Article 5 envisages a general prohibition on discrimination in respect of language, race, gender, political opinion, philosophical belief(s), religion, sect or any other similar grounds, and a specific prohibition on discrimination on the ground of sex. Article No 5 which has the headline of ‘the principle of equal treatment’ regulated as follows:
‘’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 (contract made for a definite period) and one working under an open-ended employment contract (contract made for an indefinite period).
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 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 above provisions in the execution or termination of the employment relationship, the employee may demand compensation up his (her) four months’ wages plus other claims of which he (she) has been deprived. Article 31 of the Trade Unions Act is reserved.’’
While the provisions of Article 20 are reserved, the burden of proof in regard to the violation of the above – stated provisions 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 materialised shall rest on the employer.’’
The last two paragraphes of mentioned article, regulates the burden of proof in case of discrimination. In period of The Labour Act numbered 1475, the burden of proof was loaded on the empleyee. That’s why the act above was not enough to protect the employee aganist the discrimination. The New Labour Act numbered 4857, is regulated the burden of proof particularly. Although, the burden of proof is loaded on the employee but it is enough to sustain the possibility of discrimination. Hereafter, the employer has to prove the nonexistence of discrimination. However Article 20 of the Labour Act imposes an exception to this rule. It regulates that ‘’The burden of proving that the termination was based on a valid reason shall rest on the employer. However, the burden of proof shall be on the employee if he claims that the termination was based on a reason different from the one presented by the employer.’’
Different from The Labour Act numbered 1475, ın case of discrimination, the employee has a right to claim damages by the name of compensation of discrimination by the New Labour Act numbered 4857. Additionally, the employee entitled to claim any other rights deprived of. Implementation of different salary, social welfare that the employee is devoid of, difference of gratuity are the some of rights what the employee can demand.
