Events
The applicant, who works as an employee in a private company, filed a lawsuit claiming that, unlike some other female employees, she was not taken advantage of the nursery facility, seeking compensation for discrimination and compensation for the price she paid for her child’s nursery.
The employment court accepted the case in terms of discrimination compensation and decided that compensation should be paid to the applicant, and the request for compensation for the rights he was deprived of and the price paid to the nursery should be rejected.
Upon mutual appeal of the parties, the decision of the employment tribunal by the Supreme Court of Cassation was overturned against the applicant on the grounds that the existence of one of the grounds of discrimination listed in the Labor Code No. 4857 could not be proven. The employment court rejected the case in accordance with the decision to overturn it, and this decision was upheld by the Department.
Claims
The applicant claimed that the prohibition of discrimination was violated in connection with the right to respect for family life, as some women working in the same workplace were provided with the opportunity for a nursery, while others were not given this opportunity.
Evaluation Of The Court
In order to be examined in terms of non-discrimination in connection with the right to respect for family life, it must first be determined that an intervention has been made in an interest that falls within the scope of the right to respect for family life.
Considering the provisions of the legislation in force at the time of the incident, it is understood that employers employing more than 150 female workers in their workplaces are under the obligation to establish a nursery. Therefore, it seems that the legislator has regulated the right to have a nursery facility as a legal right in terms of female workers in workplaces where more than 150 female workers work. Since it is clear that taking advantage of the nursery affects the peace and well-being of the family, it is clear that the nursery facility organized in Law No. 4857 and the Regulation issued on the basis of it is regulated by Article 20 of the Constitution. it is concluded that the family life guaranteed in the article remains within the scope of the right to respect.
In this case, the applicant is required to comply with Article 20 of the Constitution. the right to respect for family life within the scope of article 10 of the Constitution has been determined to have an interest that falls within the scope of the norm. it was deemed sufficient to conduct an examination within the scope of the non-discrimination prohibition guaranteed in the article.
Article 10 of the Constitution. the guarantees arising from the prohibition of discrimination regulated in the article are activated by treating those whose legal situations are similar differently. Therefore, first of all, it is necessary to establish a similar situation and different treatment. In cases where the existence of different treatment can be understood at first glance, the applicant is not expected to make any proof efforts. In this context, even if it is caused by legislation or practice, the applicant cannot also be subjected to a burden of proof for different treatment, which occurs regardless of the motive / intention of the owner of the treatment, even if it is caused by the legislation. However, in cases where different treatment, such as mistreatment of a person with discriminatory motives, occurs only with the motive /intention of the practitioner, the obligation to prove it belongs to the applicant. Because in such cases, the fact that the relevant action or action takes the form of different treatment is the intention of the person who is being treated.
It is understandable at first glance that the fact that the employer did not provide the applicant with the opportunity for a nursery in the incident constitutes a different treatment. In other words, the applicant’s failure to take advantage of the nursery facility constitutes a different treatment regardless of the employer’s motive. Therefore, it should be dec that the employer has established that there are differences in terms of taking advantage of the nursery facility between female employees with children whose situations are similar.
Article 10 of the Constitution. the purpose of the non-discrimination prohibition regulated in the article is to prevent those in a similar situation from being treated differently without an objective and reasonable reason. The main protection provided by the prohibition of discrimination is that individuals are not subjected to different treatment that is not based on an objective and reasonable reason. Therefore, the main issue to be examined in terms of non-discrimination is not whether the reason for the different treatment is shown, but whether it is based on an objective and reasonable reason. Article 10 of the Constitution. the situations listed in the article should be considered as examples of reasons that are not considered objective and reasonable. Accordingly, the prerequisite that a different treatment of those in the same situation does not violate the prohibition of discrimination is that it is based on an objective and reasonable reason. Any differential treatment that is not based on an objective and reasonable reason automatically violates the prohibition of discrimination.
In this case -from the point of view of different treatments that are understandable at first glance- it makes no sense to expect that a person who has been treated differently will reveal the reason for the different treatment. In this context, what is expected of the person claiming that the prohibition of discrimination has been violated should be limited to proving the existence of different treatment. On the other hand, the burden of showing the reason on which different treatment is based may be placed on the person in some cases, the person who treats it differently may be placed under the obligation to find and reveal the reason that only he knows and is hidden in his mind. Accordingly, the different treatment of the subject being completely arbitrary and differential treatment in cases where the reason is not known or cannot missed from the control of the person who made the law to discriminatory practices will be given the opportunity to create a field.
It is clear that there is a difference between female workers, whose situations are similar in the concrete dec, in terms of taking advantage of the nursery facility. After revealing the existence of different treatment, the burden of proving that it is based on an objective and reasonable reason belongs to the employer. It has been assessed that the employer did not provide any explanation about the reason for the different treatment in the incident. It has been concluded that the prohibition of discrimination has been violated due to the fact that the courts of instance have not taken into account that the employer has not fulfilled its obligation to prove that the different treatment is based on an objective and reasonable reason.
Since it was concluded that there was no objective and justified reason for the different treatment, there was no need to conduct a further examination in terms of proportionality.
The Constitutional Court has decided that the prohibition of discrimination has been violated on the grounds described.