Equal Treatment, Prohibition of Discrimination and Mobbing

Under Turkish law, protection against unequal treatment and systematic intimidation in the workplace rests on several foundations: the principle of equal treatment set out in Article 5 of Labour Law No. 4857 (İş Kanunu), the employer's duty to protect the employee's personality under Article 417 of Turkish Code of Obligations No. 6098 (Türk Borçlar Kanunu), the general principle of equality in the Constitution, Article 25 of Trade Unions and Collective Labour Agreements Law No. 6356, which governs freedom of association, Law No. 5378 on Persons with Disabilities, which sets out prohibitions of discrimination relating to persons with disabilities, and Law No. 6701 on the Human Rights and Equality Institution of Türkiye. These rules are of growing practical importance for employers: discrimination and mobbing may give rise to claims for discrimination compensation and for material and non-material damages, may entitle the employee to terminate with immediate effect for just cause together with the right to severance pay, and may become the subject of disputes before the labour courts and the Human Rights and Equality Institution of Türkiye (TİHEK).

Contents

• What does the principle of equal treatment mean in labour law?
• Which prohibitions of discrimination does Article 5 of the Labour Law contain?
• What sanctions apply in the event of discrimination?
• Who bears the burden of proof in discrimination claims?
• What is mobbing and how is it treated in law?
• What rights do victims of mobbing have?
• What is the role of the Human Rights and Equality Institution of Türkiye?
• How can employers take preventive measures?
• Conclusion

What does the principle of equal treatment mean in labour law?

Under Article 5 of the Labour Law, no distinction may be made in the employment relationship between employees in comparable situations without a reasonable and justified reason. This principle obliges the employer to treat employees in comparable situations equally; this obligation applies not only to wages and social benefits but also to promotions, training, the allocation of work and decisions concerning the termination of the employment contract. The principle does not prohibit every form of differentiation. Differences based on objective criteria such as qualifications, performance, length of service or position remain permissible. What is prohibited is placing an employee at a disadvantage without such a justified reason, or relying on specially protected grounds of discrimination without a statutory exception.

Which prohibitions of discrimination does Article 5 of the Labour Law contain?

Article 5 expressly prohibits different treatment based on language, race, colour, sex, disability, political opinion, philosophical belief, religion and sect and similar grounds. Giving concrete form to this, the article provides as follows:

• In the conclusion, performance and termination of the employment contract, no direct or indirect different treatment may be applied on the grounds of sex or pregnancy, unless biological reasons or reasons relating to the nature of the work make this necessary.
• A lower wage may not be agreed for the same work or work of equal value on the grounds of sex; protective provisions introduced in favour of female employees do not justify a lower wage.
• The fact that an employment contract is part-time or fixed-term does not in itself justify less favourable treatment compared with full-time or indefinite-term employees.

Law No. 6701 extends the protected grounds to include age, state of health, wealth and marital status, and extends protection in employment from job advertisements to application and recruitment processes, and from working conditions to career advancement and the ending of the employment relationship. In addition to direct and indirect discrimination, the Law also lists harassment, workplace intimidation, instruction to discriminate and failure to make reasonable accommodation for persons with disabilities among the forms of discrimination. Accordingly, discriminatory job advertisements (“male”, “under 35” and the like) are unlawful unless there is a statutory exception or a genuine and determining occupational requirement arising from the nature of the work.

What sanctions apply in the event of discrimination?

If the employer breaches the prohibitions of discrimination in the ongoing employment relationship or in its termination, the employee may claim, in addition to the rights of which he or she has been deprived, special discrimination compensation of up to four months' wages. In addition, the following come into consideration:

• The rights of which the employee has been deprived — for example, unequal pay differences based on sex — together with interest
• Non-material damages under the general provisions where the discrimination also constitutes a violation of personality rights and the conditions are met
• Where the discrimination also constitutes just cause within the meaning of Labour Law Article 24/II, the right to terminate with immediate effect for just cause, which the employee may exercise within the statutory time limits; and, if the requirement of at least one year of service is met, additionally the right to severance pay
• Administrative fines under the Labour Law and, where applicable, under Law No. 6701

If a termination is based on a ground of discrimination, it does not constitute a valid reason within the meaning of job security either; within the scope of job security, this renders the termination invalid. For employees who fall outside the scope of the job security provisions and work under an indefinite-term employment contract, bad-faith compensation in the amount of three times the notice period may come into consideration under Labour Law Article 17. However, a discriminatory motive does not automatically give rise to bad-faith compensation; bad faith and the other conditions must be assessed separately in the specific case.

If the discrimination is based on trade union membership or trade union activity, the special provision in Article 25 of Law No. 6356 applies and trade union compensation in the amount of at least one year's wages of the employee comes into consideration. In the case of termination for trade union reasons, the employee may claim reinstatement; however, an award of trade union compensation is not conditional on the employee applying to the employer for reinstatement or on the employer refusing to reinstate the employee. The claims set out above do not arise automatically or cumulatively in every specific case; some may be asserted together, while others may be alternatives to one another or may be the subject of a more specific provision.

Who bears the burden of proof in discrimination claims?

As a rule, the burden of proving a breach of the principle of equal treatment lies with the employee. However, Article 5 contains an important easing of the burden of proof: where the employee presents facts that strongly indicate the existence of a breach, the burden shifts to the employer to prove that no such breach exists. In practice, statistical differences, timing — for example, a termination immediately after notification of pregnancy — or documented discriminatory statements may constitute indications that strongly suggest the likelihood of a breach. It is therefore important for employers to base their decisions concerning employees on objective, consistent and predetermined criteria and to document the reasons for their decisions.

What is mobbing and how is it treated in law?

Mobbing (psychological harassment) means subjecting an employee at the workplace to hostile treatment, intimidation or exclusion that is systematic, targeted and repeated over a certain period of time. This may include, for example, exerting pressure on the employee through constant belittlement, assignment of meaningless tasks or tasks far below his or her qualifications, being left under a constant workload beyond what he or she can cope with, deliberate exclusion from team communication or workplace activities, systematic disregard of views and suggestions, being subjected to hurtful comments about physical characteristics or personal style, deliberate withholding of the authority needed for the job, being reprimanded in a humiliating manner in front of others, being subjected to disproportionate disciplinary measures, or being deliberately overlooked for promotion. Although the aim of forcing the employee to leave is frequently encountered in practice, it is not a necessary element in every case of mobbing. Isolated conflicts, objective criticism or occasional tensions are not sufficient; what is decisive is intent, systematic character, persistence, the targeting of a particular person and, in the specific case, the conduct reaching the intensity of psychological harassment.

The principal private-law basis of the employer's duty to protect against mobbing is Article 417 of the Turkish Code of Obligations. Under this provision, the employer is obliged to respect and protect the employee's personality, to ensure order at the workplace in accordance with the principles of good faith, in particular to take the necessary measures against psychological and sexual harassment, and to take measures to ensure that those who have been harassed do not suffer further harm. The duty of protection gives rise to the employer's obligation to prevent and intervene irrespective of whether the perpetrator is a manager, a colleague or a third party connected with the workplace. The employer must take the necessary and appropriate measures to prevent such conduct at the workplace, to investigate breaches of which it becomes aware or of which it could be expected to be aware given the circumstances, and to prevent them from continuing.

What rights do victims of mobbing have?

• Under Article 417 of the Turkish Code of Obligations and the general provisions, non-material damages for violation of personality rights and compensation for material damage that is causally connected and proven — for example, medical treatment costs
• Where the seriousness of the acts warrants termination for just cause, the right to terminate with immediate effect for just cause under Labour Law Article 24/II, provided that it is exercised within the statutory time limits; and, if the employee meets the requirement of at least one year of service, additionally the right to severance pay
• If the employer terminates the employment contract as part or as a consequence of the mobbing, reinstatement where the conditions are met; bad-faith compensation for indefinite-term employees outside the scope of job security; and, if the acts are based on a protected ground of discrimination, additionally the rights arising under anti-discrimination law
• Where necessary, the possibility of resorting to criminal proceedings — in cases of insult, threat or sexual harassment, under the relevant offences of the Turkish Criminal Code

In terms of the law of evidence, the courts take into account the particular difficulties faced by victims. Conclusive and absolute proof is not required; it may be considered sufficient for the employee to present mutually consistent facts that give rise to doubt regarding the mobbing claim. Witness statements, e-mails and messages, records of physicians or psychologists, documents relating to changes in duties and powers, and disciplinary and performance records are assessed together. Where sufficient indications are presented, the employer may have to explain and prove that the conduct did not constitute mobbing and that the right of management was exercised for objective reasons. Victims are therefore advised to document incidents promptly and in detail, and employers to investigate complaints seriously and to document the investigation.

What is the role of the Human Rights and Equality Institution of Türkiye?

Under Law No. 6701, persons who claim to have suffered harm from a breach of the prohibition of discrimination based on at least one of the grounds listed in the Law, in working life or at the job application stage, may apply to the Human Rights and Equality Institution of Türkiye (TİHEK). For the purposes of the Law, workplace intimidation is likewise examined as a form of discrimination only where there are intentional acts linked to one of these grounds aimed at alienating, excluding or wearing down the person in the workplace. Where the Institution finds a breach, it may impose an administrative fine. As a rule, before applying, the employer should first be asked to remedy the practice; if the request is rejected or not answered within thirty days, an application should be made to the Institution. Where there is a likelihood of damage that is difficult or impossible to remedy, the Institution may waive this precondition. The TİHEK route does not replace the right to apply to the courts; however, the Institution does not examine an application if the same dispute is being examined or has been decided by judicial bodies. In addition, Presidential Circular No. 2025/3 points out that victims of mobbing may apply not only to the institution or organisation where they work but also to CİMER, the Petitions Committee of the Grand National Assembly of Türkiye (TBMM), ALO 170, the Ministry of Labour and Social Security, TİHEK and, depending on its area of competence, the Ombudsman Institution (Kamu Denetçiliği Kurumu).

How can employers take preventive measures?

Prevention is not merely a matter of avoiding liability but a legal obligation under Article 417 of the Turkish Code of Obligations. Presidential Circular No. 2025/3 likewise provides that employers and managers should take account of the risks of psychological harassment, develop preventive and protective policies, provide training and information, and investigate allegations promptly with due regard to confidentiality. The building blocks that have proven effective in practice are the following:

• A clear anti-discrimination and anti-mobbing policy containing defined standards of conduct and communicated to all employees
• Confidential and easily accessible complaint channels and an impartial, prompt, rule-based and documented investigation procedure that protects complainants against retaliation
• Training for managers, who need to know the boundary between legitimate performance management and intimidation
• Objective, measurable and documented criteria for recruitment, remuneration, promotion and termination decisions
• Consistent sanctioning of established breaches in proportion to the seriousness of the act; depending on the circumstances of the specific case, termination of the perpetrator's employment contract for a valid reason or for just cause may also come into consideration

Conclusion

The principle of equal treatment, the prohibitions of discrimination and protection against mobbing form a multi-layered system that creates for employers the risk of both financial consequences and reputational damage. Discrimination compensation, pay differences, non-material damages, severance pay linked to termination with immediate effect for just cause and administrative fines may arise cumulatively or as alternatives to one another, depending on the circumstances of the specific case. The easing of the burden of proof in favour of victims also increases the risk associated with personnel decisions that are not based on objective criteria or are not sufficiently documented.

In this context, clear policies, effective complaint channels, trained managers and objective, documented decision-making processes provide the strongest protection for employers. For employees, it is important to document incidents promptly and carefully and to have their options, ranging from internal complaint procedures to termination with immediate effect for just cause, legally assessed according to the circumstances of the specific case.

GEMS Schindhelm advises employers on the prevention and handling of allegations of discrimination and mobbing — including internal investigations — and supports employees who are victims in asserting their rights before the courts and administrative authorities. This article is for general information purposes only and does not constitute a legal opinion or legal advice; each dispute must be assessed separately according to the circumstances of the specific case and the legislation in force.