- 1. What are the main laws on discrimination in the workplace in your jurisdiction and what type of conduct does it cover?
- 2. Which characteristics are protected by these laws (is sexual orientation a protected characteristic?), and what type of employment relationships are covered – employee, worker, platform worker?
- 3. What remedies are available to an individual if they are subject to discrimination in the workplace, and what level of compensation might be awarded?
- 4. What steps such as policies, training etc (if any) are employers required to put in place to prevent discrimination in the workplace?
- 5. Is a D&I Policy a legal requirement or best practice?
- 6. Are there any risks in not having a local D&I policy? Any reputational risks and ESG consequences?
- 7. Are employers required to report on pay transparency or gender/ethnic/disability pay gaps?
- 8. Are there any data protection rules that affect the processing and retention of diversity data, and what do they say?
- 9. Are there any quotas at board level or below, and if so what do they relate to?
- 10. Are there any corporate governance rules that relate to D&I, and what do they say?
jurisdiction
1. What are the main laws on discrimination in the workplace in your jurisdiction and what type of conduct does it cover?
Generally, the main pieces of legislation in effect in Turkiye related to discrimination are as follows:
- Turkish Constitution;
- Turkish Labour Law No. 4857;
- Turkish Human Rights and Equality Institution Law No. 6701;
- Turkish Criminal Code No. 5237.
Under Turkish legislation, the issue of discrimination in a broad sense is addressed under the Article 10 of the Turkish Constitution (“Constitution”) titled "Equality before the Law" and Article 3 of the Law No. 6701 on the Turkish Human Rights and Equality Institution Law (“THREIL”) titled "Principle of equality and prohibition of discrimination”.
Whereas the issue of discrimination in the workplace is specifically regulated under Article 5 of the Turkish Labour Law No. 4857 (“Labour Law”) titled "The principle of equal treatment” and Article 6 of the THREIL titled "Employment and Self-Employment”.
In addition to these, article 122 of the Turkish Criminal Code (“TCC”) titled "Hate and Discrimination" also regulates as a crime the prevention of the recruitment of a person based on or arising from hate. Accordingly, anyone who prevents a person from being employed due to hatred based on language, race, nationality, colour, gender, disability, political opinion, philosophical belief, religion, or sect will face imprisonment from one year to three years.
According to Article 5 of the Labour Law, any act of discrimination based on language, race, color, gender, disability, political opinion, philosophical belief, religion, sect, and similar reasons are prohibited within the scope of an employment relationship.
In this sense, the Labour Law does not limit the scope of prohibited acts to direct or indirect acts.
Lastly, according to THREIL, inter alia, acts of both direct and indirect discrimination are deemed within the scope of the relevant provisions.
2. Which characteristics are protected by these laws (is sexual orientation a protected characteristic?), and what type of employment relationships are covered – employee, worker, platform worker?
In accordance with the mentioned pieces of legislation, discrimination based on language, ethnicity, skin colour, gender, disability, political or philosophical opinion, religion, sect, pregnancy status, wealth, birth, marital status, medical condition, age, and similar circumstances are forbidden.
Sexual orientation is not one of the issues explicitly addressed under the laws. However, the expression "similar reasons" stated in the Article 5 of the Labour Law should also include discrimination based on sexual orientation.
The employment relationship regulated under the Labour Law covers the employee-employer relationship based on an employment agreement (as opposed to other forms of engagement such as those with contractors). However, prohibitions against discrimination are not applicable solely to such employment relationships and discrimination occurring in other types of engagement (such as relationships with freelancers) would also be covered by the Turkish Constitution and the THREIL.
3. What remedies are available to an individual if they are subject to discrimination in the workplace, and what level of compensation might be awarded?
According to the Article 5 of the Labour Law, in cases where the employer discriminates against the employee within the scope of the employment relationship, including but not limited to termination, the employee in questions will be entitled to a discrimination compensation corresponding to the amount of up to four months' salary as well as the compensation of the rights, which he/she was deprived.
Discrimination in the workplace qualifies as a reason for rightful termination for the employee in practice. In this respect, if the employee wishes to terminate his/her employment due to discrimination, he/she will be able to request severance pay from the employer.
The employee also has the right to demand moral compensation from the employer due to discrimination. Moral compensation aims to compensate the person affected by this unlawful behaviour in return for the sadness and psychological damage experienced. Since immaterial compensation will be claimed according to the general provisions of law, the employee must prove that he/she faced discrimination in the workplace and that he/she suffered moral losses due to this discriminative behaviour.
In cases where no sanction decision is issued after exhausting the complaint procedures set out under the Labour Law and related legislation, the employee who is subjected to discrimination could apply to the Human Rights and Equality Institution of Turkiye (“Institution”). If a violation is detected, the Institution imposes an administrative fine on the employer.
4. What steps such as policies, training etc (if any) are employers required to put in place to prevent discrimination in the workplace?
Although there are legal provisions under Turkish legislation aimed at preventing discrimination in the workplace, the obligations of the employers to combat discrimination directly are not stipulated. Instead, ancillary legislation, such as but not limited to the "Sustainability Principles Compliance Framework" published by the Capital Markets Board, has been published to encourage employers to adopt inclusive policies.
5. Is a D&I Policy a legal requirement or best practice?
Under Turkish legislation, even though there are no pieces of regulation that legally oblige diversity and inclusion policies, a significant number of companies in Turkiye apply their own diversity and inclusion policies within the company to create a business environment where employees are always respected regardless of their background and perspective, and a company culture that supports inclusivity. In terms of publicly held corporations, it can be interpreted that the source of the existence of such policies is the "Sustainability Principles Compliance Framework" published by the Capital Markets Board, which contains the basic principles that publicly held corporations are expected to apply when conducting Environmental, Social and Corporate Governance (ESG) studies. Although the application of these principles is voluntary, it is obligatory to report whether they are applied or not, in accordance with the "Comply or Explain" principle that the document suggests. In these principles, it is envisaged to establish policies that prevent discrimination and inequality in terms of employee rights. It is also possible to evaluate diversity and inclusion policies in this regard.
6. Are there any risks in not having a local D&I policy? Any reputational risks and ESG consequences?
Refer to our answer to Question 5.
7. Are employers required to report on pay transparency or gender/ethnic/disability pay gaps?
There is no regulation under Turkish legislation that necessitates such an application. However, the International Labour Organisation (“ILO”) and the Turkish Statistical Institute (“TURKSTAT”) have signed a cooperation protocol in January 2020. Within the scope of the "More and Better Jobs for Women Programme”, this Protocol targets the calculation of the gender wage gap to improve the working conditions of Turkish women. Accordingly, a report titled "Measurement of the Gender Pay Gap "Turkiye Practice" has been published as an outcome of the mentioned programme and the protocol.
8. Are there any data protection rules that affect the processing and retention of diversity data, and what do they say?
As clearly regulated under the Article 75/2 of the Labour Law, "The employer is obliged to use the information obtained about the employee in accordance with the rules of good faith and the law and not to disclose the information in which the employee has a legitimate interest in keeping it confidential."
Thus, from a labour-law perspective, any personal data collected by the employer must be used by the employer for the employer’s legitimate aims and must be kept confidential.
From a data-privacy perspective, a distinction is applicable under Law regarding the Protection of Personal Data No. 6698 (“LPPD”) with respect to types of personal data.
In general, any information relating to an identified or identifiable natural person are deemed as personal data.
On the other hand, personal data relating to the race, ethnic origin, political opinion, philosophical belief, religion, religious sect or other belief, appearance, membership to associations, foundations or trade-unions, data concerning health, sexual life, criminal convictions and security measures, and the biometric and genetic data are deemed to be special categories of personal data.
Special categories of personal data, except for data concerning health and sexual life, may be processed without seeking explicit consent of the data subject, in the cases provided explicitly by laws. Personal data concerning health and sexual life may only be processed, without seeking explicit consent of the data subject, by the persons subject to secrecy obligation or competent public institutions and organisations, for the purposes of protection of public health, operation of preventive medicine, medical diagnosis, treatment and nursing services, planning and management of healthcare services as well as their financing.
With respect to diversity data, most of such data falls into the data group described as "special categories of personal data" within the scope of LPPD. According to the LPPD, as mentioned above, the processing of such data without the explicit consent of the data subject is prohibited unless otherwise iexplicitly provided by law.
In addition, necessary precautions must be taken by the Personal Data Protection Board in the processing of special categories of personal data.
9. Are there any quotas at board level or below, and if so what do they relate to?
The Corporate Governance Communiqué published by the Capital Markets Board set a target female member ratio of 25% for the Boards of Directors of companies falling within the scope of the Corporate Governance Communiqué, although this is of an advisory nature and not binding legislation.
10. Are there any corporate governance rules that relate to D&I, and what do they say?
"Framework for Compliance with Sustainability Principles" published by the Capital Markets Board stipulates certain corporate governance rules for public companies within the scope of the capital markets legislation. Although the implementation of the principles in this document is voluntary, it is mandatory to report whether the principles are applied in accordance with the “Comply or Explain” principle. In this context, it is recommended to establish a Corporate Human Rights and Employee Rights Policy, to include women's employment and inclusion issues in their policies, to provide equal opportunities in recruitment processes, to report developments on discrimination, inequality, human rights violations, forced labour, organising training programmes and informative meetings for employees about environmental, social, corporate policies and practices on a voluntary basis.