Violation Of The Prohibition Of Discrimination On The Grounds That Some Women Working In The Same Workplace Are Provided With Day-Care Facilities While Others Are Not
Events
The applicant, who worked as a labourer in a private company, filed a lawsuit for discrimination compensation on the grounds that she had been denied the benefit of day-care centre facilities unlike some other female employees, and for compensation for the price she had paid for her child’s day-care centre.
The labour court accepted the case in terms of discrimination compensation and decided to pay compensation to the applicant and to reject the claim for compensation for the rights she was deprived of and the cost paid for the daycare centre.
Upon the mutual appeal of the parties, the Court of Cassation (Chamber) reversed the decision of the labour court against the applicant on the grounds that the existence of one of the grounds of discrimination listed in the Labour Law No. 4857 could not be proved. The labour court dismissed the case in accordance with the reversal decision and this decision was upheld by the Chamber.
Allegations
The applicant claimed that there had been a violation of the prohibition of discrimination in connection with the right to respect for family life because some women working in the same workplace were provided with crèche facilities while others were not.
The Court’s Assessment
In order to conduct an examination in terms of the prohibition of discrimination in connection with the right to respect for family life, it must first be determined that there is an interference with an interest that falls within the scope of the right to respect for family life.
Considering the provisions of the legislation in force on the date of the incident, it is understood that employers who employ more than 150 female employees in their workplaces are under the obligation to establish nurseries. Therefore, it is seen that the legislator has regulated the right to have a crèche facility as a legal right for female employees in workplaces where more than 150 female employees work. Since it is clear that the use of day-care centres affects the peace and welfare of the family, it is concluded that the day-care centre facility regulated in the Law No. 4857 and the Regulation issued on the basis thereof falls within the scope of the right to respect for family life guaranteed under Article 20 of the Constitution.
In this case, the fact that it has been determined that the applicant has an interest that falls within the norm area of the right to respect for family life under Article 20 of the Constitution is deemed sufficient for an examination within the scope of the prohibition of discrimination guaranteed under Article 10 of the Constitution.
The guarantees arising from the prohibition of discrimination under Article 10 of the Constitution are activated by the different treatment of those with similar legal status. Therefore, the similar situation and different treatment must first be established. In cases where the existence of different treatment can be understood at first glance, the applicant is not expected to make any effort of proof.
In this context, it is not possible for the applicant to bear an additional burden of proof for differential treatment that arises independently of the motive/intention of the applicant, even if it arises from legislation or practice. However, in cases where the different treatment is caused by the motive/intention of the practitioner, such as the ill-treatment of a person with discriminatory motives, the burden of proof lies with the applicant. This is because, in such cases, it is the intention of the practitioner that characterises the relevant transaction or action as different treatment.
In the case, the fact that the employer’s failure to provide the applicant with day-care facilities constitutes different treatment can be understood at first glance. In other words, the fact that the applicant was not provided with day-care facilities constitutes different treatment regardless of the employer’s motive. Therefore, it must be accepted that it has been demonstrated that the employer has created a difference between its female employees with children in similar situations in terms of benefiting from the nursery facility.
The purpose of the prohibition of discrimination regulated under Article 10 of the Constitution is to prevent different treatment of similarly situated persons without an objective and reasonable reason. The main protection provided by the prohibition of discrimination is to prevent individuals from being subjected to different treatment that is not based on an objective and reasonable reason. Therefore, the main issue to be examined in terms of the prohibition of discrimination is not whether the reason for the different treatment is shown, but whether it is based on an objective and reasonable reason.
The situations listed in Article 10 of the Constitution should be seen as examples of reasons that are not considered objective and reasonable. Accordingly, the prerequisite for a different treatment of persons in the same situation not to violate the prohibition of discrimination is that it is based on an objective and reasonable reason. Any different treatment that is not based on an objective and reasonable reason automatically violates the prohibition of discrimination.
In this case, it is not meaningful to expect the person who has been subjected to different treatment – in terms of different treatment that can be understood at first glance – to demonstrate the reason for the different treatment. In this context, what is expected from the person claiming violation of the prohibition of discrimination should be limited to proving the existence of different treatment.
Furthermore, placing the burden on the person to show the reason for the different treatment may in some cases mean that the person who has been treated differently is put under the obligation to find and reveal the reason that is known only to him and hidden in his mind. Accordingly, in cases where the discriminator acts completely arbitrarily and the reason for the different treatment is not known or cannot be proved by the victim, the discriminator is given the opportunity to create a space that escapes the control of the law.
In the concrete case, it is clear that there is a difference between female workers with similar conditions in terms of benefiting from the crèche facility. After establishing the existence of different treatment, the burden of proving that it is based on an objective and reasonable reason belongs to the employer. In the case, it was evaluated that the employer did not provide any explanation as to the reason for the different treatment. It is concluded that the prohibition of discrimination has been violated since the courts of first instance did not consider that the employer did not fulfil its burden of proving that the different treatment was based on an objective and reasonable reason.
Since it was concluded that there was no objective and justifiable reason for the different treatment, it was not deemed necessary to make a separate examination in terms of proportionality.
The Constitutional Court concluded that the prohibition of discrimination was violated for the reasons explained.
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