Prof. Dr. Berin Ergin
HOT TOPICS ON DISCRIMINATION RELIGIOUS ACCOMMODATIONS IN WORK PLACES
People who deal with human rights work for better community and humanitarian relations, offer some ideas and make plans to promote better opportunities between human beings in general.
This paper is not about general discrimination, but focused on discrimination in employment relations and specifically about religious rights and any discrimination modes relating to religion.
During the last decade, law making and enforcing people mostly focused on discrimination problems in general. But as a human rights problem, discrimination all around the world is in every means of the associations or society itself no matter it is the private sector or in public relations. Economic crisis and conflicts of international relations of governments makes even worse to practice national labour rules without any limitations. Especially labor relations getting worse and worse because of the investments procedures of international companies and globalization norms of the foreign investment guaranties that has to be accepting by the host country. Economy, designs the labor law rules, which sometimes causes discrimination against human rights.
New age economic trend naturally causes between workers inequality and discrimination. In addition, foreign capital in host countries creates discrimination. Capital has its own rules to circulate around the world, and all kind of risks should eliminate for this purpose. That is why in host countries that accept foreign capital rules and the legal system of the country should be appropriate for the international market. Applicable rules of host countries, which may cause confusion or negative effect in work places, must harmonized with the investor’s rules of law, or in contracts, applicable rules must be the law of the investor. If needed the foreign capital, it becomes obligatory to accept some privileges that foreign capital needs, which may be contrary to the host country’s legal system, and may cause legal conflicts. The need of the foreign capital and the risks of international capital investments cause severe danger to international business sector and labour relations as well.
Some topics arise from foreign capital investment and arises labour disputes in employment relations.
The wish of foreign capital is mostly focuses on maternity leave, severance payment, demands of labor unions, collective agreements, wage policy laws, to find a solution to dismiss the high wage earners, easy way of termination of employment contracts to avoid seniority, preference of short time working, preferring flexible employment conditions may count as the preferred issues.
These might possibly considered as the working conditions of the new globalization economic trend in labour relations. However, let us see whether the result is positive or not and if the same is assessed with human rights or not?
Concerning any explanation with respect to the influences of the issues of religion and belief with in the context of labor life, might state that in1955’in social life, there were no intensive religious applications as well as fanaticism inTurkeyas we witnessed. Nobody was much interested with other people’s religion, and there was no such detailed rituals applied such as today, regarding to the practice of religious obligations as now. Others respected whatever the religious applications were and it was not that much regular as today.
It was perfectly natural to be a member of a different religion and we brought up as citizens of a nation where no discrimination realized. Therefore, it is rather difficult to understand the ambient we are witnessing and observing nowadays in our country.
Unfortunately, the issue of practicing the religion has separated people into different poles. To tell the truth most of the people has doubts that this is a concept of religion that based on a sincere belief of people as a means of freedom of rights.
Due to the public expeditions and approaches with respect to implementation of religious liberties in the society with an ever-increasing pace, the situation of displaying such a development as a radical understanding of religion becomes imperative. It shall not be soothsaying to state that this issue shall give rise to various conflicts as well as some substantial hampering.
For the time being, it is possible to say that there is no controversy at work places, or at least there is no incident caused for lawsuit that has brought forward to the courts.
Making labor relations compatible with new technologies as well as the economic order and monetary policies raises positive and negative results within the respect of human rights and discrimination. Phenomena concerning religion have arisen as a problem of the most recent decades. The present status in practice within the concept of positive law terms that currently applied inTurkeybases on laic system.
II) GENERAL RULES ABOUT DISCRIMINATION IN THE CONSTITUTION OF REPUBLIC OF TURKEY
The Constitution of Republic of Turkey has very important rules about non-discrimination and fundamental rights.
Article 2 of the Turkish Constitution, which states “The Qualities of the Republic “defines that “Republic of Turkey is a DEMOCRATIC, SECULAR AND SOCIAL STATE.”.
The essential issue considering laicism is that the state has no official religion. In other words, citizens are entitled to religious freedom. In laic states, citizens are required to have religious freedom, and that such freedom guaranteed by the State. Religious affairs should separate from public affairs of the government. Governance of any state according to religious rules is contrary to laicism. The state is compelled to be neutral towards all religions in existence within the nation. The state should behave in an equal manner towards all religious entities.
If terms of religion and the affairs of state assessed with in the respect of Turkish governing system these are completely separate from each other. Under Turkish judicial system, there is no place for religious rules.
It is under the guarantee of the Constitution that citizens might not possibly be subjected to any different treatment because of their being members to different religions and beliefs.
Article 10 of Constitution stipulated equality before the Law.
According to that article, all individuals are equal without any discrimination before the law, irrespective of language, race, color, sex, political opinion, philosophical belief, religion and sect, or any such considerations. No privilege shall be granted to any individual, family, group or class. State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings.
There is also an article about freedom of religion and belief in the Turkish Constitution. That is Article 24. According to the Article 24 of the Constitution, everyone has the right of freedom of conscience, religious belief and conviction. Acts of worship, religious services, and ceremonies shall conduct freely, if they do not violate the provisions of the Constitution.
Article 14 of the Constitution provides the prohibition of abuse of fundamental rights and freedom. According to the article 14 as amended on October 17, 2001 states the Prohibition of Abuse of Fundamental Rights and Freedoms.
Under these provisions, in terms of Constitutional order fundamental norms have secured the citizens within scope of the democratic system. InTurkey, there is a Constitutional order that Turkish citizens granted fundamental rights and liberties.
Fundamental rights and liberties concerning religion have very expressly entitled the individual with freedom. Nobody might possibly force to attend religious rites or congregations. In addition, neither might it blamed of its religious beliefs and opinions.
As there is constitutional freedom inTurkey, it should state that, there are liberties legally accepted from the point of religion and performance, and forceful execution of any religion is not possible within framework of any laic order of the state.
The purpose of religious freedom is both freedom of belief as well as freedom to carry out religious rituals. The individual is free to choose any religion it so wishes, and at liberty to perform any religious rites in relation with such a religion it so chooses. This matter protected within the Constitution.
For these reasons, certain legal changes and arrangements have made on internal law. In respect of any changes made, and under scope of the principle of laic state, the protected issue is not religion, but rather freedom of religious rights of human beings. Freedom of religion is freedom of conscience. Thereby, the rule imposed under Article 24 of the Constitution is laying out the foundations that everyone is entitled to freedom of conscience, religious belief as well as liberty of holding an opinion.
Rules of the Constitution of Republic of Turkey and Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950) which stipulates the Freedom of thought, conscience and religion are very much relates with each other.
Basing on grounds that the decisions adopted underHelsinkiconvention as well as Copenhagencriteria observed, certain changes have made by the Turkish government in the laws.
An essential approach, a major change had taken place in the Public Works Act (Development Act) Number 3194 issued 3.5.1985. It is to ensure that citizens having different religions and beliefs can freely exercise their liberty of worship within framework of freedom of religion and conscience, by replacing the word “MOSQUE” under Article No. 9 of the Law has changed as “PLACES OF WORSHIP”.
Thereby, the concept of “place of worship” as is recognized in the law became as a place without differentiating between any religion. Furthermore, communities when making development plans of the cities will take into consideration that the regional conditions as well as future requirements for the practicing of a religion has to be included with respect to reserving equal conditions to the places of worship.
In provinces, counties, and towns, it is possible to construct places of worship by obtaining permission from the administrative authority in charge if at the same time it complies with legislative practices for city development. There also are provisions that any place of worship must not used apart from the legislative practice for development.
In this respect, according to the Turkish judicial practice, such an assault, hampering, insult, causing injury, deeds regarding to the performance of religious rituals are accept as criminal offense by the law. Within this concept, people may ask indemnity and under relevant provisions penalizing as well.
Apart from whether or not such hampering with respect to religious acts generates offense under Turkish Criminal Code, in case the individual having suffered any such act has given the right for compensation of any material damage or personal offense ,there also exists the right to claim compensation from any party causing such act in breach of the law.
In respect to the legal structure, there is not any hindrance regarding to constitute discrimination in terms of religion.
Within this framework of freedom of belief regarding to religions, there is an environment where everyone is free in their acts and thoughts inTurkey.
III) RULES TAKING PLACE AT THE PENAL CODE ABOUT RELIGION
InTurkey, acts with respect to hampering of the individuals’ practicing liberty of belief and/or subjected to illegal behavior on grounds of their beliefs regulated under several provisions of Turkish Criminal Code.
Such crimes as assault, insult as well as breach of the liberties of the individual or the public deemed as offenses under Turkish Criminal Code and enforcing sanctions have imposed thereon. Further, in the event such acts as solely hampering execution of religious obligations or such incidents of being insulted or impeded only for the same cause, there has been imposed no differentiation that such acts are in relation with religion. Sanctions arranged as to be in accordance with the crime generated by the act.
If to be explained in general terms, Turkish Judicial System has assumed a new dimension in the prospective candidacy for the European Union in course of the Convention of the European Union held inHelsinkion December 10 and 11, 1999. In parallel to certain obligations to fulfill with respect to democracy and human rights, which are termed as Copenhagen Criteria, has approval of some very essential changes and rules under Turkish Judicial System as well as administrative levels have been possible.
There are some rules relating to the religious matters such as Article 115 of the Turkish Penal Code which the title as prohibiting the use of belief, opinion and freedom of thought.
“Any person forcing any other person to reveal or change its religious, political, social, philosophical beliefs, ideas, or opinions by using force or threat, or prohibiting from revealing and diffusing the same, is penalized with imprisonment ranging from one to three years.
In the event mass practice of religious worships and rituals which are hampered by using force or threat, or by means of any other unlawful act, penalty is imposed in accordance with the above paragraph”.
Also there is an Article 122 of the Penal Code stipulates discrimination rules:
“Any discrimination between individuals on grounds of language, race, and color of the skin, gender, disability, political thought,
philosophical idea, religion, religious sect and such other similar reasons requires imprisonment ranging from six months to one year.
If so required to explain under these provisions, also in terms of the Criminal Code, all kinds of hampering in relation with religion have prohibited, and it has foreseen that those performing such deeds too penalized.
The existence of such provisions inTurkeyis the guarantee for the existence of democracy with respect to discrimination as well as liberties in respect of legal arrangements.
Thus, everyone is entitled to freedom of thought, opinion and religious beliefs. Citizens might change their religion, worship individually or in a group, take training with respect to their religion, perform rituals, reveal their religion and beliefs can freely use their rights.
Disclosing of religion or belief might be restricted only for the sake of preserving public security and public order, general health or moral, or rights and liberties of others and solely considered under the law for public order as a requirement of democracy.
According to the article 119/1-e of Penal Code; It is provided that, if there is not any relevant provision under the codes, no individual or no public official is allowed disclosing of the beliefs, or asks people to change their religion by using force or threat, or by making use of the authority provided by such public service or force the application of any specific belief.
In case public officials threaten any individual for having any belief; breach of freedom to believe; or apply force, hamper; or exert discrimination; then those provisions fitting their respective acts penalize accordingly .Such as Penal Code Article.106 (about Threat), Penal Code (Article.107 (about Blackmail), Penal Code Article.108. (About Force), Penal Code Articlc.109 (Depriving One of its Freedom) is considered as the misuse of their public duties.
IV) TURKISH EMPLOYMENT LAW AND RELIGION
After this general explanation in Turkish Law system, it should review the situation with respect to execution of religious duties at the work places.
A) PRACTICING RELIGION IN WORK PLACE
There is no clause in Labor Act relating to the practice of religion.
Now days in general, in many work places there are convenient places or prayer rooms where people can worship. There is no ban for opening of such places in work places. There, provided being limited to off-work hours, the employees can possibly worship if they wish so. InTurkeynobody interfere about one is praying (performing worship ritual) or not, if it does not bother performance of work. There is no such impediment or any such threat.
However, there is no such application institutionalized as the worker executing the ritual of worship within the working hours or by abandoning the work he/she is busy for religious purposes. Otherwise, for three to four times within work hours, in relation with the duty of ritual worship (namaz), which should be considered and taken as no less than 15 to 20 minutes per session, workers tend to use 60 or 80 minutes from their working time without working but receiving a salary. However, it is clear that the salary paid by the employer in return of work performed.
It should point out that, other than for any important excuse or sickness, it is not possible to impose the employer persistently each and every day on a specific time segments, during the daily work hours paid to allow the employees to use for their own private freedom of conscience , would not consider as reasonable desire. And that there is no provision under Turkish Labor Code enabling to that kind of permission during working hours
Even the most devoted religious employers do not tolerate the work to suspend within the working hours. Considering that according to the work hours 3 to 4 times a day encountered with worship ritual times, the employers have not agreed to any such an application, of no less than 15 minutes or to the extend to 20 minutes, including the time for preparation, neither in labour contracts nor in collective agreements.
Actually, it could state that there exists no such kind of application in labour relations. Genuine Muslim at heart knows very well that while working as an employee not performing daily worship at certain times does not constitute any problem. In addition, it is possible to pray the whole daily worship of ritual (namaz) altogether so other time incase it is wished. Moreover, it is not a major issue if he/she fails to execute such ritual of worship daily duty to perform. It will not be wrong to say that genuine Muslims/ the employee are aware that Islamic worshipping does not consist of any strict form or pattern of anyway kind and the workers are not requesting permission for executing the ritual of worship (namaz).
It could state that asking for permission in order to perform the ritual of worship (namaz ) is not compatible with Islam, and such an application has not yet emerged despite an outburst of radical Islam inTurkey.
In general, at work places only on Friday noon at the collective worship time (namaz), which prayer time coincides with lunch break, it is required to go to a mosque if there is any nearby, or perform the ritual of worship (namaz) collectively if there is a mesjid in the work place. Anyone who wishes might worship in this manner. However, it is of essence that such a pattern of worship does not intrude into the working hours.
Recently, it is observing that there has immense request that any proper place (which is called mesjid )or a room dedicated to ritual of worship( namaz) can be supplied for at the work places. Up until 1980s, there was no such application in the work places with respect to the performance of this type of a religious performance. The workers did not come up with any such request.
At work places, it is possible to have an application that the employers do not allow the employees for performance of their religious obligations. If the performance of work has continuous nature or in cases where it is not possible to leave the work premises on grounds of security reasons , it should realized that it is certainly and obviously not right to give such kind of permission. Because it is of essence that during work hours , workers are not to be involved with anything else other than, work.
Avoiding employment of any person who desires to perform his/her worship and thereby requests such a permission to grant, or terminate employment contract, due to neglect of work and unauthorized leave of the work place during the hours of work is possible. This sort of application should not deemed as discrimination on grounds of religious worship and should not considered as an act of unfair termination and dismissal.
Provided workers at no times and by no means hamper the work, employer may tolerated to perform their worshipping practices in case there is a mesjid or any such prayer room dedicated to their use within the work time.
However, the basic rule at the work place is not to hamper the work. In the event not allowed to permit worship in the work place to avoid any hampering of the work, should not consider as an exclusion from and restriction to the freedom of belief and worship. Such a situation does not constitute any crime or hindrance arranged under the Criminal Code as an offense.
Any act in the meaning of hindrance might not take place in any employment contract within the framework of Labor Law. Because work performance has its own specific rules which sets forth the requirement to provide security of the work place as well as implementation of such principle of equality amongst all employees working at the same work place. It might not possibly refer to as any hindrance on grounds of the order of the work place.
There might also such incidents that ritual of worship (namaz) is performed in a covert manner at the work places. If , in cases where these performance do not give rise to any hazard in the work place, or any neglect , there will be no problem for the workers to worship at times such as tea breaks or smoking breaks. However, if the place of work left without permission for worship, and there arises any problems such as neglect, failure or hazard in performance of work due to such unauthorized leave, this would be a reason for termination of the worker’s employment contract. It should admit that this must not possibly deemed as an act of discrimination..
B) SOME ARTICLES IN TURKISH LABOUR ACT
By mentioning about certain provisions that Turkish Labor Law, it is possible to find out what are the facilities with respect to the freedom of worship may at the labor life. In addition, what the provisions on equality and discrimination are.
Labor Act Art 5 : Principles of Equal Treatment
No discrimination based on language, race, sex, political opinion, philosophical belief, religion and sect or similar reasons is permissible in employment relations.
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 contract made for a definite period and one working under a 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 the employment contract due to the employee’s sex or maternity.
Different remuneration for similar jobs or for work of equal value not permitted.
Application of special protective provisions due to the employee’s sex shall not justify paying lower wage.
If the employer violates the above provisions in the execution or termination of the employment relations, the employee may demand compensation up to the amount of his (her) four months’ wage plus other forms of compensation, which he (she) has, deprived. Conditions stated at Article 31 of the Trade Unions Act are reserved.
While the provisions of Article 20 are reserved, the burden of proof about the violations of the above article is stated 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 materialized shall rest on the employer.
Labor Act Article. 18 is about the termination of labor contract according to valid reasons.
According to this article justifications of termination with a valid reason are:
The employer, who terminates the contract of an employee who is employed for an indefinite period, who is employed in an establishment with thirty or more workers, and who meets a minimum seniority of six months, must depend on a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the establishment or service.
In the computation of the six-month’ seniority, time periods enumerated in Article 66 shall be taken into account.
The following, inter alia, shall not constitute a valid reason for termination:
a. Union membership or participation in union activities outside working hours or, with the consent of the employer, within working hours;
b. Acting as, a union representative at the establishment;
c. The filing of a complaint or participation in proceedings against an employer involving alleged violations of laws or regulations or recourse to competent administrative or judicial authorities;
d. Race, color, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
These articles are such articles setting forth that it is not possible to terminate the labour contract of the worker on grounds of religion and belief and that it would not by any means be possible to terminate the labour contract of any worker performing the rituals of his/her worship. It has strictly provided under Labor Law Article Number 5 that, no discrimination may be possible between the workers. Whatever the reason might be, no discrimination could practice. Employment contract of the worker cannot terminate on grounds of discrimination or for such causes pertaining to religion or belief. Such rights preserved very clearly in the provisions of the law.
However, with unknown reasons, in common practice there is rumor going around about weather the religious discrimination is exist or not with in the concept of practicing or none practicing ritual worship in work places. Especially in the recent years, as a sociological reality the public is aware of that there is different practiced performs among religious sects, despite being of the Islamic faith. Related to that diversity in the event of employment or termination of labour contracts even if the actual reason of that procedure has no relation with religion or the differences of religious sect, the cause of termination or none employment or employment depending on religious discrimination.
As there are no such application reflected to judgment, on grounds of being members of a different belief or opinion or sect it is not seen possible now to evidence and elaborate this matter in a definite manner.
As a conclusion, it will not be wrong to say that, there might be possibilities for ritual of worship at the work place as far, and to the extent, allowed by the employers ,and if the performance of work is not impeded or jeopardized. For the practice of worshipping and religious obligations particularly on Fridays in the recent years became popular and most of the employers tolerate and allow employees for collective ritual of worship (namaz) in a mosques.
Yet it should be pointed out that it is rather hard to differentiate amongst those wishing to practice worship, who wants to use such time for actual worship, and who others to avoid work and allow themselves an extra break on their own will.
It is not that easy and possible to determine which of the employees are involved with the genuine act of worship, and yet which others are applying the same superficially, using the seclusion provided by worship just for the sake of fleeing from work.
This phenomenon may end up to such an extent that the employer would possibly abused, that is why the initiative stated should be on part of the employer as to whether or not worshipping with respect to work places.
There might be work places where the employers do give permission for worshipping or such other work places where it is not and it will not be possible to worship as required by the nature of such work. I have emphasized above that any application at such work places might not take as a restriction on the freedom of religion and beliefs. Similarly, I would like to point out that worship and work life should separated, and that worshipping concerns the spiritual life as freedom of conscience, and thus it is not appropriated that execution of such a duty to be arranged as a must in the course of labor life.
Meanwhile, the radical Islamists inTurkeyof year 2010 might not approve our explanations in that respect. Because there is a developing approach that the primary duty of any Muslim individual is to worship, as well as orations attempting to inscribe onto the subconscious of the general public that it is required for the employers to allow the worshipping and provide means to facilitate worshipping. With an ever-increasing pace as from mid 1980s, increase of radicalism in religion has given rise to various structuring in the society.
It is not possible to comment for the time being as to whether this trend would escalate, or whether people shall be as tolerant as they were in the past. Moreover, would it be possible not to intermingled labor life and worship within each other.
Radicalization witnessed with all religions has upset the ideological structure of the public as well as the balance between logics, science and the conscience. It is quite early to comment on and predict as to whether scientific thought and wisdom would prevail, or fanaticism would dominate the societies.
Changes in the climate, differentiation of the requirements of nations, increase of population shaped the nations. Increase of population happened in consumer societies but not in information societies.
Another important happening that may cause negative impact of the society is the extension of the influence of religious barons’ sovereignty. It should consider that there are some more reasons affecting the society. These may count as, increase of interrelations between states; circulation of the capital; reduction of natural resources which are necessary for mankind, and the existence of such natural resources within the boundaries of countries at specific parts of the world; causing creating and giving rise to new formations amongst societies and would ever be continuing to generate the same.
Who would condemn paying the bill of negative consequence will happen or happening in society in all contexts. The answer will be the proletariat; the workers, who deprived of their reasoning.
For the previously mentioned reasons, it would be essential for the future of the labor force to recommend that people apply their freedom of religion and beliefs on individual basis and ambient, avoiding to reflect the same to the public area.
Worshipping in the work place or otherwise, should not included on the agenda as a problem for the future labour issues. It would be the most reasonable way to leave to the employers the limits of any application with respect thereto. Regulating worshipping at the work place under laws as well as common legislative practices, and bringing the same forth to the agenda for the sake of freedom of religion and beliefs, and try to arrange practice, would create several problems in the future. Moreover, it should keep in mind that actually allowing for this type of liberty might lead real discrimination among work force.
Prof. Dr. BERİN ERGİN
 Freedom of Religion and Conscience Article 24.Everyone has the right to freedom of conscience, religious belief and conviction. Acts of worship, religious services, and ceremonies shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to worship, or to participate in religious ceremonies and rites, to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictionsEducation and instruction in religion and ethics shall conduct under state supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual’s own desire, and in the case of minors, to the request of their legal representatives No one shall be allowed to exploit or abuse religion or religious feelings, or things held sacred by religion, in whatsoever, for the purpose of personal or political influence, or for even partially basing the fundamental, social, economic, political, and legal order of the state on religious tenets.
 Article 14 “None of the rights and freedoms embodied in the Constitution shall be exercised with the aim of violating the indivisible integrity of the state with its territory and nation, and endangering the existence of the democratic and secular order of the Turkish Republic based upon human rights.
No provision of this Constitution shall interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms embodied in the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution.
The sanctions to be applied against those who perpetrate these activities in conflict with these provisions shall be determined by law. “
 Human Rights In International Law Collected Texts- 2. nd Edition, Council of Europe Publishing, 2000, p.234 Article 9 of Convention for Protection of Human Rights and Fundamental Freedoms is: 1.Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religious or belief, in worship, teaching, practice and observance.
2.Freedom to manifest one’s religion or belief shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.