Disabled workers in Turkey : in general
Employer obligations regarding the recruitment of disabled workers in Turkey and the regulation of working conditions are determined within the framework of the provisions of the “Regulation on Domestic Job Placement Services”, which entered into force after being published in the Official Gazette dated 25.04.2009 and numbered 27210, together with Article 30 of the Labour Law No. 4857. The most important change in this context is that private sector employers are exempted from employing ex-convicts and victims of terrorism. Therefore, the issue will be discussed only in the context of employing disabled workers in Turkey.
According to the definitions in Article 3 of the Regulation, disabled workers in Turkey are those who have difficulties in adapting to social life and meeting their daily needs due to congenital or subsequent loss of physical, mental, sensory and social abilities to various degrees for any reason, and who need protection, care, rehabilitation, counseling and support services, and who are documented by a medical board report to be deprived of at least 40% of their working capacity.
According to Article 13 of the Regulation, employers are required to provide the disabled workers in Turkey they have to employ through the Turkish Employment Agency. If a private sector workplace employs outside the institution, the institution will be notified within fifteen days at the latest from the start of the employment of the disabled person and the employed person will be registered.
Disabled workers in Turkey : determination of the Liability
According to Article 30 of the Labour Law No. 4857 and Article 10 of the regulation, employers are obliged to employ 3% disabled workers in Turkey in workplaces where they employ fifty or more workers within the same provincial borders, in workplaces where agricultural and forestry work is carried out, in workplaces where they employ 51 or more workers, in jobs suitable for their occupational, physical and mental conditions.
The following principles should be taken into consideration in the calculation of the number of workers to be taken as basis for the percentage calculation and the staff to be determined accordingly.
i. The total number of employees working in the workplaces of the employers established within the borders of the same province is taken as basis. In case of different legal entities, even if they are related to each other, they will be evaluated separately.
ii. The total number of disabled and ex-convicts currently working is deducted.
iii. Indefinite-term and fixed-term workers are included in the calculation, and part-time workers are included in the total by converting them to full-time work by taking into account their working hours. For example, if 10 workers in the workplace work 4 hours a day and 26 days a month in accordance with a part-time employment contract, 5 more workers will be included in the total number of workers in the workplace with the calculation method of (10*4*26) / 195= 5.33 and by considering that fractions less than half will not be taken into account.
iv. In accordance with Article 7 of the Law, when a temporary employment relationship is established, the employee working under a temporary labour supply contract shall not be included in the number of employees of the private employment agency and the employer employing temporary workers.
v. Underground and underwater workers are not included in the calculation.
vi. According to Article 47 of the Regulation on the Implementation of the Law No. 5188 on Private Security Services, private security officers will not be included in the calculation of the number of disabled and ex-convicts to be employed in private security units and private security companies.
vii. In the calculation of the ratios, fractions up to half are not taken into account, and fractions of half and more will be rounded up to whole.
c. Principles of Employment, Procedures to be Conducted
In general, the issues to be considered in the employment of the disabled workers in Turkey can be explained as follows. First of all, employers will provide the workers they have to employ through the Turkish Employment Agency. Priority will be given to those who become disabled while being an employee of the workplace. Again, if a registration request is made for those who become disabled while working and whose employment contract is not terminated, they will be registered as disabled by the institution based on the necessary documents.
Disabled workers in Turkey cannot be employed in underground and underwater works and in the works specified in the medical board report that they cannot be employed. For this reason, in order to fulfil the obligation to employ, the following process is envisaged to be applied with Articles 14 and 15 of the regulation.
Public and private sector employers will request the workers they are obliged to employ from the institution by specifying their qualifications within five working days after the obligation arises. In the requests, conditions that make employment difficult above the weighted qualifications required by the work carried out in the workplace cannot be put forward, and in the requests for workers with disability status, unless the nature of the job requires it, no upper limit can be imposed on the rate of disability and no discrimination can be made between disability groups.
The private sector employer is obliged to meet the disabled deficit within thirty days from the moment the obligation arises. The institution will send the disabled workers in Turkey with appropriate qualifications among the applicants to the employer within ten days at the latest from the date of the disability request, together with the documents stating their status and qualifications, and the employer will meet the disability deficit among the disabled people sent by the institution or other disabled job seekers registered on the institution’s portal within fifteen days at the latest by personally selecting them or among the disabled people to be procured by their own means. Those who are hired and those who are not hired will be notified to the institution, indicating the reasons.
Article 17 of the Regulation includes the prohibition of discrimination. In recruitment, discriminatory practices against the disabled and different treatment from other persons will not be allowed at any stage from job selection, application forms, selection process, technical evaluation, proposed working hours and conditions. The provisions of Article 122 of the Turkish Criminal Code dated 26.9.2004 and numbered 5237 will be applied to those who do.
Furthermore, the workplace and working conditions should be prepared according to the disabled. Accordingly, employers are obliged to prepare the workplace in a way to facilitate the work of the disabled and to ensure that the work is suitable for the disabled workers in Turkey, to take the necessary measures for their health, to employ them in jobs suitable or close to their occupations, to improve their knowledge and skills related to their work, to provide the necessary tools and equipment for their work.
d. Incentives for the Employment of Disabled Persons
Labour Law No. 4857 provides two types of incentives to encourage disabled work.
According to Article 30 of the Labour Law, when the conditions for employing disabled and ex-convicts in the workplace are fulfilled, an incentive is foreseen in the insurance premium. Accordingly, the employer’s shares of the insurance premium calculated over the lower limit of the premium-based earnings for each disabled person employed by employers who employ disabled people over quota, employ disabled people even though they are not obliged to do so, will be fully covered by the Treasury.
Another regulation in the context of the wages of the disabled and the incentives provided to the employer is found in Additional Article 1 of the Law No. 4857. Accordingly, the “Regulation on the Payment to be made to the Employer against the Wages of the Disabled Working in Sheltered Workplaces” entered into force after being published in the Official Gazette dated 30.04.2016 and numbered 29699.
According to Article 3 of the Law No. 5378 on Persons with Disabilities, sheltered workplaces are workplaces that are technically and financially supported by the state in order to provide vocational rehabilitation and create employment for mentally or mentally disabled workers in Turkey who are difficult to bring into the labour market and whose working environment is specially arranged. It is envisaged that the wages paid by the employer to the mentally or mentally disabled people who are employed here and who are difficult to be integrated into the labour market will be paid by the Treasury according to certain criteria.
Accordingly, the primary condition is that these wages must be paid on time and the legal obligations related to these wages must be met in full and on time. If these are not fulfilled, the provision of this article will not be applied.
With the arrangements made, not all of the wages paid by the employer, but only a certain amount will be covered by the Treasury. Accordingly,
a) For each disabled employees in Turkey working in the protection workplace, the amount of the monthly amount paid in accordance with the subparagraph (a) of the first paragraph of Article 2 of the law dated 01.07.1976 and numbered 2022 on the monthly allowance for needy, weak and orphaned Turkish citizens who have reached the age of 65,
b) Twenty per cent of the amount determined by subparagraph (a) for each disabled person working in sheltered workplaces established in the provinces within the scope of Article 2 of the Law No. 5084 dated 29.01.2004 on the Encouragement of Investments and Employment and Amendments to Certain Laws,
c) In workplaces employing more disabled workers in Turkey than the number required to be employed by the relevant legislation in order to obtain sheltered workplace status, twenty per cent of the amount determined by subparagraph (a) will be paid to the employer by the Ministry of Family and Social Services for each disabled person employed above the required number.
In order to make a payment in accordance with Article 6 of the Regulation, the employer must prepare a number of documents. Accordingly, a document stating that there is no social security premium debt, a document stating that there is no tax debt, a document proving that employers pay the wages of the disabled in full and on time, a sheltered workplace form will be prepared and an application will be made to the provincial directorate of the Ministry of Family and Social Services in the province where the workplace is located. The application can be made for the wages of the disabled for the period when the protected workplace status of the workplace continues.
Additionally, in accordance with Article 7 of the regulation, workplaces that benefit from the sheltered workplaces grant support provided by the commission established according to the Regulation on the Commission Authorized to Use Administrative Fines Collected from Employers Who Do Not Employ Disabled and Ex-Disabled Persons, will not be able to benefit from the wage support within the scope of the regulation simultaneously.