Comparative Report: Disabled Employees in Turkish, UK and Romanian Law by tofdgenelmerkez

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The Report Series of I Can Work! Project* Comparative Report: Disabled Employees in Turkish, UK and Romanian Law Authors: Assoc. Prof. N. Münci Çakmak Dr. Tolga Şirin RA Canan Ünal Editors: RA Canan Ünal Advt. Pınar Şanel * I Can Work! Project was funded by Civil Society Dialogue III – Political Criteria grant scheme which was implemented by the European Union and The Ministry of European Union of Turkish Republic. The project was coordinated by The Spinal Cord Paralytics Association of Turkey with partnership of Praxis Europe (England), ROSCOS (Romania), Saglik-Sen (Trade Union of Health Sector Workers) İstanbul Branch No:1 (Turkey) between 15th October 2014 and 14th December 2015. The aim of the project is to analyse the current situation of the policies on the employment of persons with disabilities and to increase the capacities of NGOs to contribute to the improvement of political reforms on the employment rights of disabled citizens. “This publication is produced with financial support of the EU and Republic of Turkey. The Spinal Cord Paralytics Association of Turkey is responsible from the content of this document and can in no way be interpreted as the opinion of the EU and/or the Republic of Turkey.” November 2015 © 2015, The Spinal Cord Paralytics Association of Turkey Address: Ataköy 7-8. Kısım, Mimar Sinan Villaları Karşısı, Rekreasyon Alanı, 34750 Bakırköy / İstanbul - Turkey Telephone: +90 212 661 1 661 www.tofd.org.tr contact@tofd.org.tr Design: Fulya Hocaoğlu Paging Up: Bahadır Çınar 2

“I CAN WORK!” PROJECT As The Spinal Cord Paralytics Association of Turkey, we implemented the “I Can Work!” Project which received grant under the Civil Society Dialogue Grant Scheme Program in partnership with Saglik-Sen (Trade Union of Health Sector Workers) İstanbul Branch No:1 (Turkey), Romanian Spinal Cord Society (ROSCOS) and Praxis Europe (UK) starting in October 2014 for one year. We intended to investigate through our project the work done in Turkey and other European Union member countries at the policy level in terms of the employment of the disabled. Therefore, we organized study visits to Romania and the UK. During these study visits, we not only found the chance to learn the policies of these countries on the subject, but also visited the institutions carrying out work in different fields and observed the reflections of these policies on everyday life. At the end of the project, we learned the system philosophies of the EU countries and we developed policy proposals in order to contribute to the current policy of Turkey during workshops in our seminar where we evaluated the policies regarding the employment of the disabled and where the public and the civil society came together. One of the most important pillars of this project was the academic reports prepared during the project. It makes us very excited that these reports are going to cover a serious deficiency in the field. I hope our national reports that examine the Turkish, the United Kingdom and Romanian systems in-depth and also our comparative report comparing Turkey with the European Union countries will shed light on everybody who wants to work on these issues. We sincerely hope that our dialogue that we developed in this field with our partners will continue in our future work as well. Burak Keskin - Project Coordinator www.icanworkproject.com

CIVIL SOCIETY DIALOGUE FULL SUPPORT FROM THE EUROPEAN UNION AND TURKEY TO INTERNATIONAL DIALOGUE It is an indispensable part of the membership process for the societies in Turkey and European Union member countries to know each other better, to exchange information and come together in terms of their social values, judgments and lives. At this point, both the European Union and Turkey support the projects constituting the grounds for such convergence within different programs. This Civil Society Dialogue Program carried out by the Ministry of European Union since 2008 continuing its third period is one of these initiatives. The non-governmental organizations from Europe and Turkey develop joint projects on the determined subjects for each period under the program. Many studies have been carried out in Europe and Turkey under these projects which constitute an important place in starting a strong dialogue between societies. In the new term starting in October 2014, 55 projects developed by the non-governmental organizations and media institutions active in a European Union member countries or Turkey are being supported with grants. 39 projects out of the 55 projects are the ones designed under the main subjects of fight against discrimination, human rights, democracy and the rule of law which are on the agenda of Turkey and European Union. There are 16 projects implemented on media which is another pillar of the program. These projects aim at informing the public on the European Union - Turkish relations, enlightening about the steps taken in the membership process and the obtained results and strengthening the mutual understanding between the European Union and Turkish society. www.civilsocietydialogue.org

PREFACE The Spinal Cord Paralytics Association of Turkey (TOFD) has played an important role in increasing the quality of its services and developing of the visions of its team, and employees and executives of different non-governmental organizations, institutions and enterprises; and has contributed diligently to the creation of national and international projects performed in cooperation with the central government, local governments, universities, and NGOs (Non-governmental Organizations); and has successfully completed all of these projects. Significant studies were carried out on the applicability of many of the reported examples to our country in the study visits held abroad within the scope of the projects. We also guided the transfer of some information on the improvement of the knowledge, conduct and quality of life of people with disabilities which are developed, yet still absent in our project partner countries. It is a fact that the right to work is one of the key elements for each individual. In the research we conducted 15-20 years ago, the employment rate was observed to be very low even for the disabled individuals working in the public sector. We identified how important it is for the disabled to join production life based on the work analysis, capacity, conditions, and problems of the disabled in the work life; and paved the way for the disabled to take up a respected position in the society by pioneering the removal of the barriers in front of them. All the projects have shown how important the public-civil society dialogue is. In our “I Can Work!” Project, the previous experiences and researches of our foreign partners ROSCOS and Praxis Europe have led us to cooperation with them. Joining the Sağlık-Sen (Health Union) Istanbul Branch No 1 which carries out the related studies on the disabled employment to the project as a partner, we have completed our joint study in the international arena with success and maximum benefits. Our country and comparative reports generated for the project have been prepared by experienced professionals/academics in the field determined by us. I believe that all institutions and organizations which are working on the issue from different perspectives such as project partner institutions and organizations, related ministries, bar associations, universities, local governments, trade unions, business and civil society can benefit from the project result reports in the most efficient manner.

I offer my gratitude to the Ministry of the EU supporting us in every phase of the project; and I wish the dialogue we have established between the Public and NGOs continues after this point. Ramazan BAĹ&#x17E; - The President of TOFD

CONTENTS INTRODUCTION................................................................................................................9 PART ONE APPROACHES TO THE CONCEPT OF DISABILITY AND COUNTRY ANALYSES

I.APPROACHES TO THE CONCEPT OF DISABILITY IN THE WORLD..............13 II. THE UNITED KINGDOM AND DISABILITY..........................................................17 III. ROMANIA AND DISABILITY...................................................................................19 IV. TURKEY AND DISABILITY......................................................................................20 PART TWO A CONSTITUTIONAL OVERVIEW OF DISABILITY EMPLOYMENT RIGHTS I. IN TERMS OF THE FUNDAMENTAL RIGHTS AND FREEDOMS IN THE CONSTITUTION...............................................................................................................22 1. General Information on the Constitutions.........................................................................22 2.The Regulations Related to Disabled Rights.....................................................................23 3. Assessments......................................................................................................................30 II. IN TERMS OF INTERNATIONAL HUMAN RIGHTS LAW..................................40 1. The Approval Status of International Documents on Disability Employment Rights.........40 2. Disability Rights Committee Case Law............................................................................48 PART THREE LEGAL REGULATIONS ON THE EMPLOYMENT OF THE DISABLED I. LEGAL REGULATIONS IN TURKISH LAW.............................................................53 1. Employment of the Disabled under Labour Law...............................................................54 a. Preparing the Disabled for Employment and Mediation..............................................55 b. Employing Disabled Employees..................................................................................57 i. The Requirement to Employ Disabled Employees.…………………………….....…..57 aa. The requirement to employ a quota of disabled employees …...……...……...57 1) Overview…………………….........................................................…….…..57 2) Determining the employers who are required to employ a quota of disabled employees .........................................................................................................58 3) Identifying disabled employees…….............................................................59 bb. The requirement to reemploy the employee whose disability is eliminated.....62 7

ii. Sheltered Workshops……………………................…......………..…................…63 aa. Overview………………………………………………………………..….…63 bb. The conditions for acquiring the sheltered workshop status………….....……64 cc. Incentives for sheltered workshops…………………………………....….…..65 iii. Premium incentives……………………….....…………….....…………………..66 c. Disability-Based Discrimination………………………………………………….….67 i. Overview.............................................................................................................67 ii. Legal Enforcement.............................................................................................68 aa. Disability-based discrimination according to the Labor Law No. 4857...........68 bb. Disability-based discrimination according to the Law on Disabilities No. 5378........................................................................................................................69 iii. Penal and Administrative Enforcement.............................................................71 2. Disability Employment under Administrative Law.....................................................72 a. The 1982 Constitution and Disability in Public Employment................................73 b. The Civil Servants Law No. 657 and the Entrance of the Disabled to Civil Service........................................................................................................................74 c. Disabled Public Personnel Selection Examination (EKPSS) for the Disabled and the Recruitment of the Disabled to the Office.................................... .......................76 d. Various Provisions which Facilitate the Disabled Regarding Civil Services.........78 i.

The privilege provided with the right to appointment...................................78

ii.

Rights on working hours................................................................................79

iii. Special arrangements on leaves.....................................................................80 iv. The right to resume the work.........................................................................80 II. LEGAL REGULATIONS IN UNITED KINGDOM LAW........................................81 III. LEGAL REGULATIONS IN ROMANIAN LAW....................................................89 IV. EVALUATIONS...........................................................................................................94 REFERENCES...................................................................................................................99 THE BACKGROUND OF THE AUTHORS AND EDITORS.....................................106

INTRODUCTION While approximately 15% of the world population is disabled, 2-4% of them are faced with serious operational difficulties. 1 The rate of disabled individuals expressed as 10% starting from the ‘1970s until the beginning of 2000s has increased depending on the population growth, aging, chronic diseases and the extension of lifespan as well as the change in the methods used in determining disability. When it is taken into consideration that this rate is expected to rise, it becomes apparent that the need for the protection of the disabled is a pertinent issue. The disabled are referred to as the “the largest minority group in the world” by the United Nations. 2 Although most problems caused by disabilities are universal, the adoption of different approaches has resulted in the emergence of differentiating legal protection for the disabled amongst different countries. 3 Prepared under the “I can work!” project carried out in the partnership of Sağlık-Sen Istanbul No. 1 Branch, ROSCOS (Romanian Association of Paraplegia) and Praxis Europe (the United Kingdom) between 15 October 2014 and 14 October 2015 with the coordination of The Spinal Cord Paralytics Association of Turkey and supported by the Civil Society Dialogue III Political Criteria Grant Scheme performed by the Turkish Ministry of the European Union, the report aims to provide a comparative evaluation of the working rights of the disabled under the Turkish, United Kingdom and the Romanian laws. The United Kingdom has been a member of the European Union since 1973, while Romania has been a member since 2007. Turkey, on the other hand, is not a member

1 World

Health Organisation, World Report on Disability,

http://www.who.int/disabilities/world_report/2011/world_report_disability_easyread.pdf?ua=1, 3. 2

United Nations, Some Facts about Persons with Disabilities, New York, 14-25 August 2006, http://www.un.org/

disabilities/convention/pdfs/factsheet.pdf (Access date: 17 August 2015). 3

Due to the differences resulting from disability classification and definition, the rate of disabled individuals in the total

population varies from country to country. For instance, according to the official data in Turkey disabled individuals correspond to 12.29% of the total population (TÜİK, Disabled Statistics Results, Disability Rate, http://www.tuik.gov.tr/ VeriBilgi.do?tb_id=5&ust_id=1.), while the Family Resources Questionnaire published in 2014 specified that the disabled comprised of one fifth of the total population in the United Kingdom (United Kingdom National Report § 1.2).

of the European Union, but has submitted its application for full membership to the European Union on 14 April 1987. The Council of Europe granted Turkey the status of candidate country for European Union membership in the Helsinki Summit in December 1999. Although the Council of Europe decided to start the accession negotiations with Turkey on 17 December 2004, the accession negotiations began on 3 October 2005 and the Council adopted the new Accession Partnership Document for Turkey in December 2005. 4 Therefore, the European Union acquis is important for Turkey in the full membership process to the European Union as well as being a resource for the United Kingdom in Romania and thus, the report will include the assessments in this regard.

The first of the obstacles the disabled face are the obstacles in their work life. According to the EUROSTAT data of 2011, the most commonly cited reason for disabled people, who are not in employment but who have worked before, for leaving their job (more than 30%) is the illness or disability of the individual. 5 Once again, the primary reason that disabled people do not seek employment (around 50%) is due to their disability. 6

Written based on the national reports prepared under the “I can work” project, this comparative report will first explain the concept of disability and disability at work in the Turkish law as well as the United Kingdom, and Romanian law;

then the

For the relations of Turkey and European Union, see: The official webpage of the European Union

Turkey 5

Delegation,

http://avrupa.info.tr/tr/ab-ve-turkiye/tarihce.html

(Access

date:

May

2015).

The main reason non-employed persons aged 15-64 have left their job, AB-28, 2011, http://ec.europa.eu/eurostat/

statistics-explained/index.php/File:Main_reason_for_leaving_last_job_for_not_employed_persons_aged_15-64_ having_a_previous_work_experience,_EU-28,_2011_(in_%25;_missing_answers_not_included).JPG (Access date: 2 September 2015). 6

The main reason for inactive persons aged 15-64 for not seeking employment, AB-28, 2011, http://ec.europa.eu/eurostat/

statistics-explained/index.php/File:Main_reason_for_not_seeking_employment_for_inactive_persons_aged_15-64,_EU28,_2011_(in_%25;_missing_answers_not_included).JPG (Access date: 2 September 2015). 7

In this section, the title “Approach to Disability Concept in the World” was authored by Res. Asst. Canan Ünal, while the

others were penned by Assoc. Prof. N. Münci Çakmak.

constitutional overview of the disabled people’s right to work will be put forth; 8 and finally, the employment of the disabled as civil servants and workers 9 will be addressed.

This section was authored by Dr. Tolga Şirin based on the national reports of the countries within the project.

In this section, the title “Approach to Disability Concept in the World” was authored by Res. Asst. Canan Ünal, while the

others were penned by Assoc. Prof. N. Münci Çakmak.

PART ONE

APPROACHES TO THE CONCEPT OF DISABILITY AND COUNTRY ANALYSES (Assoc. Prof. N. Münci Çakmak; Research Assistant Canan Ünal) 10

Defining the concept of disability is of great importance in terms of both the right to work and the right for social security. This definition determines whether or not a person is disabled. An individual who falls within the definition of disability as defined by the law has an opportunity to benefit from the rights granted by the law.

It is a difficult task defining disability. The modern understanding of the definition today has removed the problems causing disability from the individual and shifted it to the community. The disabled person has shed the title of ‘patient’ and is instead referred to by the title ‘disabled’. The perspective referred to as ‘social model’ has gone even further and refers to these individuals as not the ‘disabled’, but as people ‘with special needs’ or people ‘in need of special services’. However, this positive process is not yet fully mature. Still in the legal systems of some countries, it is seen that terms such as infirm, disabled, patient etc. are being used to describe the disabled in both legal regulations and social perspectives.

After outlining this change in the approaches to the concept of disability in the world, our study is going to touch upon the general available definitions of disability and the disabled in Romania, the United Kingdom and Turkey in this regard. The summary information provided was obtained from the report prepared about Romania, the United Kingdom and Turkey.

10 In

this section, the title “Approach to Disability Concept in the World” was authored by Res. Asst. Canan Ünal, while the

others were penned by Asst. Prof. N. Münci Çakmak.

I. APPROACHES TO THE CONCEPT OF DISABILITY IN THE WORLD 11 Different approaches to disability have emerged depending on time and location. Accepted as a medical condition in the traditional approach, disability emerges as a result of symptoms of the individual. In this approach that is also referred to as the medical model, disability is used almost synonymously with the symptoms and these symptoms result from an illness, accident or other health problems. In other words, symptoms caused by the illness, injury or other health problems of the individual require the assessments of the individual as disabled without the need for further examination. Thus, if the symptoms arise due to illness, injuries or other health problems, the individual is disabled; each disabled individual has some symptoms. With this approach, this ability is the fate of the person; it is the destiny of the individual who experiences an illness, injury or health problems to become disabled. For instance, a person who uses a wheelchair is disabled and will never get ‘well’ as the situation is simply accepted as the tragedy of the person and this tragedy is continuous. The situation of the individual can only be observed with medical treatment and rehabilitation. This model which adopts a normative approach has been severely criticized. Today, the medical model has been abandoned and replaced with the social model (the human rights model). The human rights model approaches disability as a social concept. More particularly, it evaluates the social factors that cause the disability instead of attributing it to the individual by reducing disability to the symptoms of the individual, unlike the medical model. This approach to disability as a social concept has been subject to different assessments (Pfeiffer, 2002. 234-235). In terms of the Marxist model emerging in the United Kingdom, there is a difference between impairment and disability. While impairment is biological, disability is social. In this model, the focus is not on the mental or physical deficiencies of the individual, but the exclusion of the society of 11

This part was authored by Res. Asst. Canan Ünal and is based on the related part of her publication dated 2015. For

the publication in question see: Ünal, Canan (2015) “Engellilik Kavramının ve Engellilerin Sosyal Güvenlik Haklarının Uluslararası ve Karşılaştırmalı Hukuk Işığında Değerlendirilmesi”, MÜHF Engelli Hakları Komisyonu Engelli Hukukuna Giriş Sempozyumu (Disabled Rights Comission Introduction Symposium to Disabled Law), Istanbul: Legal.

the individual due to his impairment. According to this, if the person using a wheelchair cannot go to the post office because there is no ramp or an elevator, his legs are not accepted as the reason for this, but the architectural barriers are. As a result of this approach, the individual does not suffer embarrassment due to his ‘abnormality’ or does not consider the situation his fault, yet might express upset at society because of the discrimination he is exposed to. As a result of this, this model aims not at the change of the individual himself, but at the changes in society. Indeed, according to this approach, the social organization results in discrimination towards disability and thus, the solution is to change the social organization. 12 In the example given above, the individual does not have to change, yet the architectural barriers should be eliminated.

The other human rights model originates from the United States. Also referred to as the North American Minorities Approach, this model is based on the disability movement that emerged in the 1960s in the United States. There have been changes in perspective of concept of disability as a reflection of the independent living idea and discrimination regulations which were put on the agenda during these years. Disability was evaluated not as a concept depending on the objective character or deficiencies of the individuals, but as a category created by society in order to legitimize the discrimination towards the individual due to the difference of his body from the social norms (Erkulwater, 2006:29). In the North American Minorities Approach, unlike the United Kingdom models, there is no differentiation between impairment and disability and the focus is not just on the environmental factors but also the social, cultural and political dimensions of the disability, which are important (Traustadottir, 2009:14-15). According to this model, creating ‘normal’ role models in society prevents the individual from finding his own identity, while disability is evaluated as an unpredicted differentiation. In other words, disability makes it impossible to perform some roles or makes them too difficult. Therefore, changing the individual as in the medical model or changing the social organization as in the social model in the United Kingdom are not enough, yet changing the expectations of the ‘normal’ role in the society is sufficient in terms of eliminating discrimination (Pfeiffer, 2002:234-235).

12 For

detailed information on the United Kingdom model see: Traustadottir, 2009: 9-11; Burchardt, 2004: 11 vd.

In the Scandinavian relational model, unlike the United Kingdom model, there is no differentiation between impairment and disability. Indeed, the term that means ‘disability’ in the Scandinavian languages is an umbrella term and includes the meaning of impairment. In this model, the focus is on the existence of a complex interaction between the individual factors and the environment; and disability is seen as the incompatibility between the individual and the environment (Traustadottir, 2009: 12-13). It should be noted that although there is no single social model, the common denominator of all the social models is their approach to disability under the framework of human rights and their focus on the place of the disabled in social life. All these models aim for legal development in terms of human rights and, thus, the full participation of the disabled in society (Ünal, 2012:16). As the most comprehensive and most recent international document regarding disabled rights and referred to as the ‘Declaration of Independence for the Disabled Worldwide’ (Kanter: 2007: 314), the UN Convention on the Rights of the Disabled was opened for signature on March 30, 2007 and is of great importance in terms of defining the concept of disability. According to the Convention, “an individual who is faced with various barriers and whose long-term physical, mental, intellectual or sensory disturbances prevent them from equally, fully and actively participating in the society” is considered to be disabled. However, the remarkable point in terms of the Convention is that the definition of the term disabled is not included in the article titled ‘Definitions’, but under the article titled ‘Purposes’. In doing so, it aims to prevent the drawbacks of ascribing a fixed definition to the term ‘disabled’ which is of a dynamic nature, depending on the mindset of societies and communities. (Çağlar, 2009:12, Kanter, 2007:292). This Convention was signed and ratified by all of the countries within the project. 13 The United Nations Convention on the Disabled Rights is a manifesto on the adoption of a social model in disability law with a great diversity from the national legal

Unlike the United Kingdom and Turkey, Romania has not ratified the optional protocol. For information, see.

http://www.un.org/disabilities/countries.asp?navid=17&pid=166 (Access date: 21 September 2015).

regulations. The Convention adopts the disabled as subjects of rights, and drifts away from the approach of seeing disability as an object of aid, medical treatment or social protection. In this context, the barrier of an individual who uses a wheelchair in employment shall not be his symptoms and his wheelchair, but the buses, building and the constructed environment in the international law (Fredman, 2011: 98).

The concept of disability had not been defined in the European Union until recently. The decision Navas v. Eurest Collectividades SA

of the European Court of Justice (ECJ) is

important in terms of first defining disability. In the decision, the ECJ decided that the 2000/78/EC Directive which was a framework on the principle of employment and equal treatment at work does not cover the termination of employment contract due to illness, because this illness cannot be evaluated as disability in accordance with this directive; and expressed the concept of disability as a situation that prevents the individual from participating in professional life or the limitations resulting from physical, mental or psychological disorders.

The European Union signed the United Nations Convention on Disabled Rights on March 30, 2007, in other words, following the Navas v. Eurest Collectividades SA decision. The Council Decision numbered 2010/48/EC on November 26th, 2009 decided on the ratification of this Convention after putting a reservation on the provision of Article 27 / I. 15 The Convention was then ratified on December 23, 2010. It should be noted that this convention is the first United Nations Human Rights Convention ratified by the European Union. With the ratification of the Convention, the UN and EU legislations are parallel to one another in terms of the definition of 14

AAD, Navas v. Eurest Colectividades SA, C-13/05, 11 July 2006, http://curia.europa.eu/juris/document/document.

jsf?text=&docid=56459&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=60743 (Access date: 23 October 2014). 15 The

article on which there is a reservation is titled as â&#x20AC;&#x153;Labor and Employmentâ&#x20AC;?. According to the annex of the Council

decision related to the reservation, the countries of European Community can issue reservations on the 1st paragraph of this article. The reservation might be for the exclusion of the non-discrimination clause based on disability in the armed forces of the memer states in accordance with the Community Law (especially Directive No. 2000/78). This issue is regulated in the Paragraph 4 of the Article 3 in the mentioned Council Directive. About the Council Decision see. http://europa.eu/rapid/press-release_IP-11-4_de.htm (Access date: 9 December 2014).

disability. The definition of disability has also become homogeneous in international law (Ă&#x153;nal, 2012:25). II. THE UNITED KINGDOM AND DISABILITY According to the 2010 Equality Act, the individual must have a physical or mental impairment that seriously affects his daily life activities for a prolonged time in order to be considered a disabled person. The law focuses on the individual and not the disability. The law also does not list types of disabilities. However, some special cases are taken into consideration (HIV infection, cancer or multiple sclerosis diseases are protected by the law). This definition remains somewhat distant from the social model definition. Obstacles or factors which restrain the person are not external to the individual, but are internal to him. In accordance with the article, the person has to have an impairment to be deemed disabled. However, factors which render the person disabled are in fact external factors. According to the United Kingdom disabled statistics published in the Family Resources Survey of 2012, more than 12 million disabled people live in the United Kingdom and this number corresponds to one fifth of the total population on average. An average of 80% of disabled people encounter disability after birth and most of them are forced to make significant changes/arrangements in their lives. According to the numbers issued by the government (gov.uk), 6.9 million disabled people are of working-age and 44% of these are economically active. This table corresponds to a quarter of those without disabilities (Papworth Trust; 2013, Rowntree Foundation; 2014). Along with more than 1 million disabled people using wheelchairs, more than 50% of the disabled are observed to have lifting and carrying restrictions (English Federation of Disability Sport, 2014). In addition, it is estimated that 2 million adults have hidden disabilities such as learning disorder/disability or mental illness and a quarter of these are at a serious disability level (Papworth Trust, 2013). When the employment of such people having hidden disabilities is considered, it is seen that the employment rate of 17

those having mental disorders is 22%, while the employment rate of those with learning disability/disorder is 35%. In terms of sensory disorders, it is seen that more than 1.87 million people in the United Kingdom experience vision disorders or loss of vision which significantly affect their life (NHS Information Center, 2014); and approximately 10 million people are exposed to a certain level of hearing impairment or deafness (Action on Hearing Loss; 2014). Approximately 30% of those experiencing vision or hearing impairment are of working age. The employment rate of those experiencing sensory impairment is less than 50% and this rate falls below 33% in serious vision or hearing impairments. It is observed that the working disabled usually work at low status jobs which do not require any skills and those working at a professional and managerial position are 12% when compared to the 21% non-disabled people working at such positions. In addition, the disabled earn 10% less than those without disabilities (Scope, 2014) and one sixth of the people who became disabled while working, lose their job within one year (Papworth Trust, 2013). 30% of the disabled are exposed to unfair treatment in the workplace including bullying and harassment due to their disabilities (UK Commission on Employment and Skills). In addition, these people believe that their workplaces have strict attitudes that cannot meet their needs. In terms of access to the workplace, it is seen that 60% of the disabled have limited opportunities or do not have access to vehicles that can take them to their workplace (compared to the 27% rate across the whole population); and 75% of them face obstacles in public transportation (compared to the 60% rate across the whole population). 58% of the licensed 78,000 taxis in the United Kingdom are wheelchair accessible, and according to the Department of Transport, all public transportation buses will be adapted to the use of those having physical impairment until 2017 (Papworth Trust; 2013). When we look at the European Union from a holistic perspective, we see that 80 million people in the Union are disabled (more than 15% of the total population of the European Union). This number is equal to the sum of the population in Belgium, Czech Republic, Greece, Hungary and the Netherlands. The more the level/intensity

of disability increases, the less participation in workforce occurs (20% heavily disabled people vs 60% non-disabled people). While only more than 50% of the disabled have the opportunity to receive higher education when compared to those without disabilities, 38% of the young disabled people have not experienced any paid employment yet or at all (http://ec.europa.eu/news/justice/101115_en.htm). III. ROMANIA AND DISABILITY The disabled in Romania benefit from a system called ‘private social protection system’. 700,736 people benefit from this special social protection system. According to the laws, in order to benefit from the special social protection system, the person must fall within the scope expressed as thus, “the disabled children and adults who live in an environment inadequate for their physical, cognitive, emotional, and mental qualities and thus are partially or completely denied opportunities in social life and are in need of protection for social integration and participation”. Not only Romanian citizens, but also citizens of other countries and stateless persons can benefit from this scope during the time in which they are in Romania (Art. 2, Paragraph (1) & (2) Law Number 448/2006 Protection and the Promotion of Handicapped Persons’ Rights). Recently, a movement has begun for replacing the expression ‘handicapped person’ with the expression ‘disabled person’. If we are to explain these expressions in Turkish, in the adjective handicapped, the negativity is linked to the person’s self, while the word disabled emphasizes the reasons beyond the person. In other words, the phenomena which restricts the person and makes it difficult for him to participate in society and work life is not caused by the person, but by society. Using such an expression would be much more appropriate not only for Romania but also in all countries across the world. In fact, even the word disabled is being replaced with terms such as ‘those requiring special needs’, ‘those in special needs’ in some respects. Romania put ‘2006 - 2013 National Strategy’ into effect in 2005 and put forth three main objectives in order to achieve the protection and promotion of disability rights policy: 19

- To support the social integration of the disabled as active citizens who can sustain their own lives; - To provide support to families of the disabled people who need care; and - To increase the employment rate of the disabled. Another project prepared in 2014 (The National Strategy concerning social inclusion of people with disabilities 2014 – 2020 Social policies - from ‘rehabilitation’ of the individual to ‘society reform’) is pending approval. Article 50 of the Romanian Constitution regulates the duty of the state to provide support with national policies ensuring equal opportunities for the rights and participation in the social life of the disabled who need special protection.

IV. TURKEY AND DISABILITY As a result of the changes on Article 3/c of the Law on Disability Rights No. 5378 16 with the Law Number 6518 on 6 February 2014, the disabled is described as “the person affected by the attitudes and environmental conditions which limit his full and active participation in the society under equal conditions with the other individuals due to his losses in his physical, cognitive, mental and sensory skills at various levels”. Above all, this definition points to an extremely important issue by connecting the reason for the disability to the attitude of the society and environmental conditions. Thus, disability is not evaluated under the medical model, but the social model. The amendment in the law in question is also a requirement of the obligations arising from international law (Ünal, 2015) and is an important step in changing social perception. It is very important that this article of the law provided an effective definition of the disabled, because this definition will be wholly or significantly used in the creation of legislation about the disabled or for issues about the disabled in Turkey (such as aids, education and benefits). Instead of creating a new definition in each legislation, references will be made to this article. It is noted that a successful definition of the

16 Offical

Gazette 19 February 2014, 28918.

term â&#x20AC;&#x2DC;disabledâ&#x20AC;&#x2122; concerns not only that single legislation but also all other legislations connected to it. In addition, there are many positive developments in Turkish law in terms of the concept. Before the 1990s, the legislation included the term handicapped. However, due to the negative connotations imposed by the term, the legislation was amended and teachings largely abandoned using the term handicapped as a reflection of this change. While this word was replaced with the word impairment in the legislation, the teaching preferred the word disability. Once again, disabled people objected to the use of the term impairment. Taking the criticisms in this regard into account, legislators replaced the term handicapped in various laws with the term disabled in 2013. 17

17 Law

No. 6462, Official Gazette 24 April 2013, 28636.

PART TWO A CONSTITUTIONAL OVERVIEW OF DISABILITY EMPLOYMENT RIGHTS (Dr. Tolga Şirin) When we talk about the employment rights of the disabled, we talk about a human right. In fact, ‘disability rights’ and ‘the right to work’ describe two different categories of human rights. The first of these explain the rights of the members of a disadvantageous vulnerable group, while the second one describes a social human right that applies to everyone without a specific limitation. When we say the right to work for the disabled, we point out to the intersection of the two rights. The mentioned intersection area has a number of provisions in the Turkish Constitution. These can be divided into two in terms of: (i) the Fundamental Rights and Freedoms in the Constitution, and (ii) International Human Rights Law. I. IN TERMS OF THE FUNDAMENTAL RIGHTS AND FREEDOMS IN THE CONSTITUTION 1. General Information about the Constitutions The focus of the report is on the United Kingdom, Romania and Turkey. Unlike Romania and Turkey, the United Kingdom does not have a written and codified Constitution subject to strict constitutional jurisdiction. The Romanian Constitution entered into force in a referendum in 1991. The decisions of the European Court of Human Rights (ECHR) have influenced Romanian law. On the other hand, the accession process of the country to the European Union required revising many constitutional provisions. The most comprehensive amendments in the Constitution took place in 2003. Turkey is a state with nearly 140 years of constitutional heritage. The current constitution which came into force in 1982 was the fifth ring of the constitutional

chain which started with the first 1876 Constitution in the Ottoman Empire. 18 Although the Constitution is the product of a military coup made in 1980, the mentioned text has undergone changes eighteen times with the influence of the judgment of the European Human Rights Court (EHRC) and the nomination of Turkey as candidate to the European Union (EU). Seventy provisions in total were amended, and twenty-one provisions were abolished and seventeen provisions were added. Therefore, particularly articles on fundamental rights and freedoms, were very close to the level of modern European states. Notwithstanding, there are ongoing discussions about the new constitution, and new proposals are being prepared within the scope of this discussion. 2. The Regulations Related to Disabled Rights As there is no codified Constitution in the United Kingdom, it does not seem possible to make a reference to a constitutional provision clearly. However, the Disabled Persons (Employment) Act of 1944, Disability Discrimination Act of 1995, Equality Act of 2010 and the Welfare Act of 2010 are regarded as the constitutional regulations related to disability employment rights. The Disabled Persons (Employment) Act of 1944 was brought into force to enable the disabled to find jobs, become rehabilitated and work after the Second World War. The application of the quota system to the public sector employers as well as private makes it possible for the disabled to be registered as disabled if they wish so by public and private sector employers; and the employment services are provided. In order to eradicate existing sexual and racial discrimination, the Disability Discrimination Act of 2005 on the other hand, prescribes methods such as persuasion and training â&#x20AC;&#x201C; together with continuing to apply the quota system in the Disabled Persons (Employment) Act 1944, and even eliminating the exceptions afforded to smaller businesses from 2005. (http://uk.qatrain2.eu/european-policy-on-disabled-people-and-the-position-of-disabledpeople). The Equality Act of 2010 is a significant constitutional regulation when compared to the equality provisions in the written constitutions. Along with regulating that the 18 There

were other constitutional documents before this. 1876 Kanun-i Esasi was the first constitution in that form.

disabled have the right to property services and opportunities, the act makes it illegal for employers to discriminate or harass the disabled. This covers application forms, interview arrangements, compliance and proficiency test, job offers, working conditions including wages, benefits, commuting and working opportunities, termination of the employment contract or dismissal, disciplinary and complaining procedures. Furthermore, it can be said that in addition to the conventional provisions on equality, there are also provisions which encapsulate concepts in anti-discrimination legislation, and case law based on these provisions. In this respect, different treatments based on the disability of the disabled (direct discrimination), actions that make situations seriously disadvantageous for the disabled despite there being no specific discriminatory intention (indirect discrimination), discrimination against a person due to his relationship with another disabled person (resulting discrimination), showing different treatment to a person different to his colleagues due to his appearance (perceptional discrimination), turning a blind eye to the abuse of colleagues or other persons (such as their requests that the disabled is removed from a certain place) against the disabled (third-party harassment), unfavourable treatment to the person complaining that he has undergone discrimination or unfairness or the person who supports the complainant (victimization) are all constitutionally prohibited under the United Kingdom law. Reasonable accommodation is a method whereby the necessary appropriate precautions are taken in order to eliminate the disadvantages brought along by an employer or any person or any institution, provision, criteria or applications for the disabled people. Another method is positive discrimination which entails taking special temporary precautions in order to eliminate the disadvantages of this person due to his qualities where he faces any different treatment due to his disability. In addition to all of this, the Welfare Act of 2012 has been expressed as an important constitutional security for the disabled. The Romanian Constitution which is in force is a codified and strict constitution unlike the United Kingdom Constitution. This Constitution does not contain any Preamble. However, the Constitution provides general provisions regarding fundamental rights and freedoms. According to Article 16 of the Constitution;

All citizens enjoy the rights and freedoms granted to them by the Constitution and other laws, and have the duties laid down thereby. According to Article 17; The citizens are equal before the law and public authorities, without any privilege or discrimination. (…) Access to public, civil, or military positions or dignities may be granted, according to the law, to persons whose citizenship is Romanian and whose domicile is in Romania. The Romanian State shall guarantee equal opportunities for men and women to occupy such positions and dignities. According to Article 41 of the Romanian Constitution that includes some social rights: The right to work shall not be restricted. Everyone has a free choice of his/her profession, trade or occupation, as well as work place. All employees have the right to measures of social protection. These concern employees’ safety and health, working conditions for women and young people, the setting up of a minimum gross salary per economy, weekends, paid rest leave, work performed under difficult and special conditions, as well as other specific conditions, as stipulated by the law. The normal duration of a working day is of maximum eight hours, on average. On equal work with men, women shall get equal wages. Apart from such general provisions in the Romanian Constitution, there are also special provisions regarding disadvantaged people. Article 49 of the Constitution titled ‘Protection of children and young people’ includes a provision stating “The State shall grant allowances for children and benefits for the care of ill or disabled children. ” Article 50 which presents a much more specific quality in comparison is as follows:

The disabled persons shall enjoy special protection. The State shall provide the accomplishment of a national policy of equal opportunities, disability prevention and treatment, so that disabled persons can effectively participate in community life, while observing the rights and duties of their parents or legal guardians.

The 1982 Constitution in force in Turkey contains quite a number of provisions in terms of the fundamental rights and freedoms system. The first provision in the constitution in this regard is located in the Preamble:

That every Turkish citizen has an innate right and power, to lead an honourable life and to improve his/her material and spiritual well-being under the aegis of national culture, civilization, and the rule of law, through the exercise of the fundamental rights and freedoms set forth in this Constitution, in conformity with the requirements of equality and social justice; (...) that they have the right to demand a peaceful life based on absolute respect for one another’s rights and freedoms, mutual love and fellowship (...) With these IDEAS, BELIEFS, and RESOLUTIONS to be interpreted and implemented accordingly, thus commanding respect for, and absolute loyalty to, its letter and spirit; Has been entrusted by the TURKISH NATION to the democracy-loving Turkish sons’ and daughters’ love for the motherland and nation.

Following the Preamble, the second article expresses that the State has the following qualities 20 which have a certain meaning in terms of the right to work for the disabled:

The Republic of Turkey is a democratic, secular and social state (...) respecting human rights, (...) and based on the fundamental tenets set forth in the preamble.

The emphasis is located in the original text.

20 These

qualities are parallel to Article 1 of the Romanian Constitution. On the other hand, there is a paralellism in terms

of the invariable articles (impartiality, Republic, official language). However, Article 4 of the Turkish Constitution states that the democratic, secular, social law state principles are invariable by going beyond the Article 152 of the Romanian Constitution.

The Constitution does not only set forth the qualities of the state, but also separately regulate what the duties of the state are in a separate article. According to Article 5 of the Constitution entitled “The Fundamental Aims and Duties of the State”: The fundamental aims and duties of the State are to safeguard the independence and integrity of the Turkish Nation, the indivisibility of the country, the Republic and democracy, to ensure the welfare, peace, and happiness of the individual and society; to strive for the removal of political economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s material and spiritual existence. 21 While the state is described as such, there is also a description for fundamental rights and freedoms. According to Article 12: Everyone possesses inherent fundamental rights and freedoms, which are inviolable and inalienable. The fundamental rights and freedoms also comprise the duties and responsibilities of the individual to the society, his/her family, and other individuals. Regarding restrictions on fundamental rights and freedoms, Article 13 of the Constitution which was inspired from the judgments of the ECHR is as follows: Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality. The principle of equality complements all these principles. Used synonymously with the non-discrimination clause, that article is exactly as follows:

The Confederation of the Disabled and the Turkish Federation of Blinds suggested the addition of the expression of

“figting against discrimination” in the constitution discussions continuing in Turkey.

X. Equality before the law ARTICLE 10- Everyone is equal before the law without distinction as to language, race, color, sex, political opinion, philosophical belief, religion and sect, or any such grounds. Men and women have equal rights. The State has the obligation to ensure that this equality exists in practice. Measures taken for this purpose shall not be interpreted as contrary to the principle of equality. Measures to be taken for children, the elderly, disabled people, widows and orphans of martyrs as well as for the invalid and veterans shall not be considered as violation of the principle of equality. No privilege shall be granted to any individual, family, group or class. State organs and administrative authorities are obliged to act in compliance with the principle of equality before the law in all their proceedings. In light of these principles, it can be said that the 1982 Constitution is parallel to western constitutions and largely bears the liberal doctrine of natural law. However, social rights are not excluded in the Constitution. Twenty-four of the sixty-seven different articles which are specific to the subjective fundamental rights are located under ‘Social and Economic Rights and Duties’; three of which regulate the right to work. Although this is a positive situation as social rights are of critical importance for the disabled, Article 65 of the Constitution which states that the State will implement its duties set forth by the Constitution in the social and economic domain “within the capacity of its financial resources, taking into consideration the priorities appropriate with the aims of these duties”, and Article 91/1 which provides that the social and economic rights can be regulated with decrees, and finally, Article 148/3 which states that only fundamental rights “within the scope of the European Convention on Human Rights” may be subject to constitutional complaints renders the implementation of social rights somewhat dubious. (Kaboğlu, 2010: 43; Şirin, 2014: 342). In addition to these general provisions, there are also subjective articles focusing on the disabled. The articles in question include “Equality Before the Law” (Art. 10), 28

“Provisions Relating to Labor” (Arts 49-50), “Persons Requiring Special Protection in the Field of Social Security” (Art. 61), “Right to Enter Public Service” (Art. 71) and “Duties and Powers of the President of the Republic” (Art. 104) . 22 The provisions of the Constitution regarding the right to work are as follows: V. Provisions Relating to Labor A. The Right and Duty to Work ARTICLE 49- Everyone has the right and duty to work. The State shall take the necessary measures to raise the standard of living of workers, and to protect workers and the unemployed in order to improve the general conditions of labor, to promote labor, to create suitable economic conditions for prevention of unemployment and to secure labor peace. B. Working Conditions and Right to Rest and Leisure ARTICLE 50- No one shall be required to perform work unsuited to his/her age, sex, and capacity. Minors, women, and physically and mentally disabled persons, shall enjoy special protection with regard to working conditions. All workers have the right to rest and leisure. Rights and conditions relating to paid weekends and holidays, together with paid annual leave, shall be regulated by the law. The part directly related to the disabled and social security rights is as follows: X. Social Security Rights 22 The

statement within the scope of the President’s duties and powers is related to that the President has the authority to

“alleviate or abolish the penalties of certain individuals due to permanent illness, disability, and aging”; and thus, cannot be considered directly related to the employment right of the persons with disabilities. However, the other articles can be said to be directly related to the employment right of the people with disabilities.

(...) B. Persons Requiring Special Protection in the Field of Social Security ARTICLE 61- The State shall protect the widows and orphans of martyrs of war and duty, together with invalid and war veterans, and ensure that they enjoy a decent standard of living. The State shall take measures to protect the disabled and secure their integration into community life. The elderly shall be protected by the State. State assistance to the elderly, and other rights and benefits of the aged shall be regulated by the law. The State shall take all kinds of measures for social resettlement of children in the need of protection. To achieve these aims the State shall establish the necessary organizations or facilities, or arrange for their establishment. Finally, the Constitution includes a special provision regarding the disabled in terms of public employees: IV. Right to Enter Public Service A. Entry into Public Service ARTICLE 70- Every Turk has the right to enter the public service. No criteria other than the qualifications for the office concerned shall be taken into consideration for recruitment into public service. 3. Assessments If we are to make an assessment in light of the information presented to us, it is seen that the disabled are not overlooked in the constitutional regulations in all three countries. It should be noted that the constitutional regulations in the United Kingdom include further assurances compared to the constitutions of other countries. In Romania, the obligation to protect the disabled as a disadvantaged group and general 30

equality regulations as well as a special article regarding the disabled, unlike in Turkey, prove the special interests of the Constitution in the subject matter. However, these regulations should be tested with implementation. As we could not acquire adequate case law information from our report partners in Romania and the United Kingdom, the assessments regarding the implementation of such norms shall remain largely limited to Turkey. i. Negative Duties The provision of the Constitution that imposes negative duties, in other words the duty to avoid, with respect to the disabled is Paragraph 1 of Article 10 in the Constitution which regulates the prohibition of discrimination. In this paragraph, some of the traditional ‘questionable basis’ is clearly mentioned in terms of discrimination. However, ‘disability’ is not among those clearly listed in the article. The prohibition of discrimination based on disability is observed in the expression of the article which states that discrimination cannot be made ‘on any other similar grounds’. Although many constitutional changes have been implemented in Turkey, there has been no proposal for clearly adding ‘the prohibition of disability-based discrimination’ to the article. When the preparatory meetings and the records of the Constitution are examined, no views are found on this issue. Thus, intentionally or not, this issue has been neglected. The neglect in question still continues. Neither the draft of the constitution prepared in 2007 (http://tinyurl.com/nx7ywgv), nor the work of the Commission established for the new constitution (Barın, 2014) specify the expression ‘disability-based discrimination’. The most clear proposal on this issue has recently been put forward by the Altı Nokta Association for the Blind, the Confederation of the Disabled, and the Turkish Federation of the Blind. According to the report prepared by these organizations, the expression “on the basis of disability” should be added to the Article in question which regulates the right to equality (http://tinyurl.com/llvpdgf). The opinion of the Constitutional Court (CC) is that issues not to be discriminated in terms of equality shall not be limited with those listed in the text of the Article.

According to the CC, unlike the previous constitutions, in the 1982 Constitution, “issues not to be discriminated on have been expanded by providing that no discriminations shall be made [for similar reasons] and thus, clarity has been obtained in the implementation of this rule” (CC, 1986). In a recent judgment of the constitutional complaint, the CC states in a decision regarding the prohibition of discrimination that “the prohibition of discrimination includes the offer of opportunities or the rejection or deprivation of opportunities due to a personal feature that cannot be chosen such as gender, race, disability and age or due to personal preferences which are elements of the identity of the individual such as religion (CC, 2014 114), political opinion, sexual and gender identity.” Although the case in question is not directly related to the disabled, 23 this decision is the first case law of the CC in which ‘disability’ is clearly listed amongst the causes of discrimination. The traditional and established jurisprudence of the CC regarding the principle of equality is as follows: The principle of equality set forth in Article 10 of the Constitution is valid for those whose legal status is the same. This principle anticipates not operational, but legal equality. The purpose of the principle of equality is to ensure that the people in the same situation are subjected to the same procedures before the law and to prevent discrimination and privileged treatment. This principle also prohibits the violation of equality before the law by implementing the same rules to the people and communities in the same situation. Equality before law does not mean that everybody will be subjected to the same rules from all aspects. The features of their situation might require different rules and practices for some people or communities. If the same legal cases are subjected to the same rules and if the separate legal situations are subjected to different rules, the principle of equality predicted in the Constitution is not injured (CC, 2011). As is known, this approach inspired by “the separate but equal doctrine” of the US Supreme Court might be used in the legitimization of some types of discrimination. If this doctrine is implemented without considering “reasonable harmonization”, it will

23 The

statement within the scope of the President’s duties and powers is related to that the President has the authority to

possibly create problems for the disabled. For instance, when we consider that the practice in Germany on sending the disabled to different schools in their educational life is legitimized with this approach (Degener, 1995: 97), it should be noted that disability is a suspicious basis for discrimination in both work life and other spaces, and different treatments regarding disabilities (in terms of burden of proof rules, the narrow interpretation of legitimization etc.) should be approached sensitively. The Turkish Constitutional Court has been examining the constitutional complaints made by the complainants along with the tangible and abstract norm inspections since 2012. Thanks to this application procedure, everybody including the disabled can make a constitutional claim regarding the violation of their foundational rights. However, according to Article 148 in the Constitution, only foundational rights and freedoms under the scope of the European Convention on Human Rights can be subjected to constitutional complaints. Article 45/1 of the law regarding establishment of the Constitutional Court and the trial procedures No. 6216 which regulates the details of the constitutional complaint institution, states that the additional protocols to which Turkey is not a party, are not within the scope of the constitutional complaint. Turkey is not a party to the additional protocol No. 12 which regulates â&#x20AC;&#x2DC;the general prohibition of discriminationâ&#x20AC;&#x2122; (Art. 1). Therefore, when the prohibition of discrimination in terms of a right which is not under the scope of the ECHR is violated, it cannot be subjected to constitutional complaint. In that sense, for instance when a disabled person claims a violation in terms of the right to work through the constitutional complaints, the issue shall be out of the jurisdiction of the Constitutional Court (CC, 2013a: 33). Therefore, the claim suggesting the violation of the non-discrimination clause in terms of right to work may have only a reflected or indirect protection (protection par ricochet) from a right within the scope of ECHR. So far, the CC has not provided any resolutions on the right to equality of persons with disabilities in its case law. Although the CC has implemented an analysis technique parallel to that of the ECHR decisions thanks to constitutional complaint cases, it has not deepened theese discrimination analysis techniques and has not transferred the basic concepts relating to discrimination law such as â&#x20AC;&#x153;direct 33

discrimination”, “indirect discrimination”, “resulting discrimination”, “harassment”, “reasonable harmonization”, “multi-base discrimination” to the national jurisprudence. The mentioned conceptual expansions have correspondence in the United Kingdom law. This is extremely important considering the discrimination against the disabled. This equality provision of the Romanian Constitution does not specifically include any “suspicious basis”. The situation is positive in terms of the fact that disability is not neglected against the other discrimination bases, yet as disability is not clearly mentioned, it is a negative feature that disability discrimination has not been highlighted. ii. Positive Duties It is much debated in Turkish doctrine which of the provisions in the Turkish Constitution impose positive duties upon the state with respect to the disabled. Namely, in the constitutional amendment in 2010, a paragraph stating “measures to be taken for children, the elderly, disabled people, widows and orphans of martyrs as well as for the invalid and veterans shall not be considered as violation of principle of equality” was added to the second paragraph of Article 10 of the Constitution. This paragraph has been included in the Constitution as part of a constitutional reform package that includes changes in numerous articles as a result of the referendum. When the propaganda regarding this matter in the pre-referendum process in 2010 is monitored, we see that it was claimed that the article brought about the duty of “positive discrimination” or “positive action” in favor of the mentioned subjects (http://tinyurl.com/oy6guwy; in the same direction CC, 2012: Aynı yönde AYM, 2012: Engin Yıldırım’ın karşı oyu). Despite such claims, this provision in reality does not impose a special duty to the state. Indeed, although debated, this clause falls far behind the provisions of Constitutions of other countries claimed to bring constitutional obligations to the state. Namely, the provision added to Article 10 of the Constitution does not have a similar nature to the provision “legislature takes the measures to eliminate disadvantages affecting people with disabilities” in the Swiss Constitution (Art. 8/4) or the provision in the Fiji Constitution (Art. 38/2) stating “everyone has the right to enter shops, hotels, guesthouses, public entertainment venues, public transport 34

services, taxi and public spaces without being discriminated against any prohibited basis [such as disability]”. While even the given examples are questionable as it is not certain whether the state has an obligation to undertake special precautions, the provision in question cannot be claimed to lead to any improvement regarding special measures as it expresses a stance which falls behind these. The 2010 amendment did not effectively impose any duty to undertake a positive action and remained limited to an assurance that already exists (Şirin: 2015: 90). For provisions in the Turkish Constitution which impose on the state positive actions in favor of the disabled, one need not look further than Article 5 entitled ‘The Aim and Duty of the State’, rather than Article 10. In this article, the duty of the state is regulated as “to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law”. When the wording of the Article is taken into account, Article 10 of the Constitution can be expected to be systematically reviewed together with this article. Yet, the CC pursued a fluctuating course for many years regarding whether Article 5 of the Constitution contains a positive action (Oder: 208 et al.). Once the Court started delivering constitutional complaint decisions, it steadily began to use this material as the basis for a positive obligations doctrine (CC, 2013b: 30), however it has not yet considered the issue in the context of prohibition of discrimination. Provisions which impose clearer positive obligations to the State with respect to Article 10 regarding the disabled can be seen in the Constitution under the right to work and right to social security. Especially in Article 50 regarding the right to work, the provision “(…) physically and mentally disabled persons, shall enjoy special protection with regard to working conditions)” and the provision “the State shall take measures to protect the disabled and secure their integration into community life” in the Article 61 are particularly valuable in terms of social security rights. Given the rationale of these provisions of the Constitution, these articles seem to be penned as ‘directives’. Similarly, in Article 61, the emphasis that “the State shall take measures to ensure the employment of the disabled, to exempt them from some taxes and rehabilitate them” (Sezer, 2004: 175) is also significant.

As we have seen, the text of the Constitution contains numerous provisions that impose positive duties to the state regarding the right to work for people with disabilities. The CC, however, has been inefficient in terms of using this material and revealing the norms. When the CC case law is examined, we can see that it suggests the state should take the necessary measures to ensure employment for those who want to work regarding the right to work in many of its decisions (CC, 1989); that work is defined as a duty, and that in addition to being a right, it is the consequence of the respect of the individual towards society and himself, meaning the person can avoid being a burden on society and other community members in general (CC, 1989). Stating in all its case law that the state’s obligation is to the extent of its financial opportunities (CC, 1983), the CC has not developed a case law of core obligations regarding such social rights for either persons with disabilities or others. However, “the ban on the interference with the self” in Article 13 of the Constitution is appropriate for such a case law expansion. The general trend of the CC is to check that its cases comply with the rule of law without a thorough technical assessment. This complicates making a consistent and systematic assessment on how the CC considers specific issues. This applies to both unique cases which are of a seminal quality (Orientierungswirkung) as well as cases directly regarding disability employment rights. There are two judgments in the CC case law that can be considered in connection with the right to work for the disabled. The first judgment is important in terms of showing that the state’s duty to undertake positive actions will not be deemed to be contrary to the constitution. The subject of the case is related to income tax deducted from a disabled lawyer. Two preliminary pieces of information will be provided for a better understanding of the case: the Turkish tax system has a “disability allowance” in determining the income tax base. Article 58 of the Income Tax Law on taxation in Turkey introduced a “standard of living presumption system”. In this system in the nature of a tax security institution, the “standard of living” is set before a tax is levied. In determining this standard, the living standard reached by the income tax payers in a province and it is assumed that the income of the agricultural, commerce and professional workers will not remain below the set standard of living. If a lawyer does not have an income to state, he is 36

deemed to earn as much as the standard of living; if he declares an income more than the standard of living, the income tax base is determined above it. In the mentioned case, the local court trying the case in which a disabled lawyer is a party, decided it was unconstitutional to apply the relevant article of the Income Tax Law about disability allowance only to those taxpayers who have an income above the standard of living and brought the matter before the CC. According to the consistent grounds of the Local Court; For the prosecuting attorney, there is no difference between earning above or under the living standards up to a certain extent (up to the amount of disability allowance) and the disability allowance is linked to a limit. This results in that the same tax should be paid up to a certain amount. (...) There is inequality between those who inherently have to put more effort to work and those who inherently work easier; and it is seen that the disabled freelance worker under constitutional protection is not protected at this point and is not encouraged, which is clearly against [the Constitution] (CC, 2003). The CC has opted to ignore the disabled nature of the applicant and to address the issue as a constitutional inspection of a general tax liability, rather than a case which falls within the scope of the prohibition of discrimination. According to the CC: The legislature can set different criteria for the taxation of income, wealth and spending such as the subject, quantity and quality in line with the constitutional principles and can determine different liabilities and rates depending on the amount and factors of the income. The income to be taxed by the Income Tax Law is the net amount of income, revenues and earnings. The tax is levied on the gross amount of income. The taxation of the actual amount of income is a requirement of taxation based on financial power to ensure fair and balanced taxation distribution as well as being a welfare state obliged to carry out a fair tax policy. It is natural that the people who have reached the same living standard are subjected to the same rules, and it is not contrary to Article 2 of the Constitution, of the rule of law and Article 73 which determines the basic principles of tax assignment when 37

no distinction is made between them considering their specific situation (CC, 2003). As seen in the CC’s “non-justified grounds,” the Court did not take the specific situation of disabled taxpayers into account. However, Article 50 of the Constitution stating that “physically and mentally disabled persons shall enjoy special protection with regard to working conditions” could be a case of assessment in the present case. However, this provision has been ignored. In addition to this negligence, since there are no clear directives or special measure provision in Article 10 of the Constitution regarding discrimination in favour of the disabled, the CC could decide that this issue is within the discretion of the legislature without a comprehensive debate. This example sets out the critical difference between the existence and absence of a positive action duty or specific measure provisions in the non-discrimination article of the Constitution. The second judgment on the matter is related to the provision in the Labour Law which imposes upon the employer the obligation to employ a disabled or ex-convict. In the present case, the employer did not employ any disabled or ex-convicts despite the conditions stipulated by law, and therefore, received administrative penalty. In the lawsuit filed for the cancellation of this penalty, the court brought the provision which imposes the obligation to employ the disabled and ex-convicts in the Labour Law for concrete norm control to the CC. The argument of the local court is as follows: (...) Although Article 48 of the Constitution states that establishing private enterprises is free and Article 18 prohibits forced labour, limiting the freedom of contract of the private enterprise and forcing it to employ the disabled and ex-convicts who will not be productive in the workplace and will not contribute to the work life and the efficiency of the commercial company for the employer constitute a violation of Article 48 of the Constitution, and since imposing an obligation to pay salaries to the people not desired in the workplace can be considered under the indirect forced labour ban, it is also contrary to Article 18 of the Constitution. The social law state shall provide the sources required to fulfil its responsibilities entrusted by the Constitution through taxes using the specified measurements and methods stated in the Constitution, and when the resources

allocated to social spending are inadequate, instead of the transfer of responsibility, it shall encourage the participation of the people to this expenditure. Since the protection rehabilitation, social resettlement, employment and ensuring a standard of living worthy of human dignity of the disabled, ex-convicts and terror victims is a task directly given by Article 61 in the Constitution to the State itself, there is no reliability with Article 61 when this assignment is loaded disproportionately to the private enterprise whose purpose is profitability as stated in Article 30 of the Law No. 4857. In this case, it was concluded that Articles 30 and 101 of the Law No. 4857 which are the subjects of objection are contrary to the provisions of the Constitutional requirements of social law state, the rule on the prohibition of forced labour and freedom of contract. In this concrete norm control file which is based on the allegation that the disabled quota system in national legislation is a violation of the forced labour ban (Art. 18 of the Constitution) and contractual freedom (Art. 48), the CC referred to the systematic review method and rejected the case as follows: The duty to employ the disabled (…) is based on the idea of protecting those who lost their employment opportunities significantly due to (…)lack of mental or physical capabilities. Since the provision in the second paragraph of Article 50 of the Constitution stating that (…) “physically and mentally disabled persons, shall enjoy special protection with regard to working conditions” guarantees the special patronage of the disabled, the rule is a requirement of Article 50 of the Constitution in terms of the disabled. The duty imposed by the rules aims at ensuring the disadvantageous people in work life due to their disability (…) lead a life worthy of human dignity by incorporating them to the work life, therefore, it is a consequence of the social state principle in the second article of the Constitution. In the justification of Article 61 of the Constitution, the state is assigned the obligation to “ensure the employment of the disabled” by stating that “the State shall take measures to ensure the employment of the disabled, to exempt them from some taxes and rehabilitate them” and to take measurements to ensure execution of the 39

private enterprises (…) “in line with the social purposes” (…) with the provision in the second paragraph of Article 48 saying that “the State shall take measures to ensure that private enterprises operate in accordance with (...) social objectives”. When considered along with the obligations in question assigned to the State by Articles 61 and 48 of the Constitution, the rule envisaging the obligation to employ the disabled in the private and public sector is deemed as a consequence of the principle of social state and pursues social aims. In addition, there is no disproportion in the rule regarding private sector (CC, 2008). Following these two judgments, we can conclude Turkish law as follows. The Constitutional legislation includes directives for the legislature and are suitable for bringing in positive action obligations in favour of the disabled especially in work life to the State. However, the CC does not use these articles effectively and stays behind the text of the Constitution, because the CC has the tendency to ignore positive discrimination in favour of the disabled as a constitutional directive. The approach of the CC means that the positive action or inaction of the State in favour of the disabled shall be deemed in accordance with the Constitution. In other words, this issue, contrary to the Constitution, is left completely to the sole discretion of the legislature. When we look at the constitutional provisions of the United Kingdom, it is understood that the United Kingdom law includes the principle of reasonable accommodation and affirmative action laws. The Romanian Constitution does not specify – at least in the wording – any provision that brings in any positive duty towards the elimination of discrimination against the disabled. II. IN TERMS OF INTERNATIONAL HUMAN RIGHTS LAW 1. The Approval Status of the International Documents on Disability Employment Rights The most important international text related to disability rights in the UN system is the International Convention on the Disability Rights. This convention was opened for

signature on 30 March 2007 and entered into force on 3 May 2008 with the approval of twenty States. Currently there are 159 states including the European Union which have signed in the text in question. Aside that, there has been an optional Additional Protocol regarding the authority of a Committee of Disability Rights regarding this issue which examines the individual applications of people or groups of people whose rights in the convention are violated. This additional protocol regarding the recognition of the authorities of the Committee which will inspect the disability rights prescribed in the convention was signed by 151 states and has been ratified unfortunately by only 85 states (Ĺ&#x17E;irin, 2015: 84-85). Yet the relevant international instruments are not limited to these. Other international texts located within the EU, EC, UN and ILO also contain provisions regarding the working rights of the disabled. The effect of these documents in the reporting countries varies. The United Kingdom is a country where parliamentary sovereignty applies. The acceptance of the international law in domestic law depends on the legislation of the parliament about this issue. In this sense, the status of international treaties against the domestic law is highly controversial. Nevertheless, where the United Kingdom is a signatory to an agreement, it is obvious that it will be considered responsible for fulfilling the requirements in terms of international law. The United Kingdom has ratified the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) which is not directly associated with the disabled, yet can provide reflective protection and includes a anti-discrimination provision as well as the Protocol amending the European Social Charter and the Revised European Social Charter. The United Kingdom has not ratified the right to collective complaint to the European Committee of Social Rights. Protocol No. 12 containing the general prohibition of discrimination clause has not been signed by the United Kingdom. The

United

Kingdom

has

take

into

consideration

all

Rec(2006)5

recommendation decisions (the Council of Europe the Disabled Action Plan 2006 24 Especially

the European Community law of 1972 tried to solve the issue about the direct implementation of the European

Union Law.

2015 to encourage the full participation of the disabled to the society and their rights) which are produced by the Council since United Kingdom is a member of the Council of Europe. Since the United Kingdom became a member of the EU in 1973, the EU law is applicable in United Kingdom. The United Kingdom approved the International Convention on the Elimination of All Forms of Racial Discrimination, International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, which are in the UN system. However, the United Kingdom did not sign the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. The United Kingdom did not grant the right of individual petition to the Committee of Human Rights, the Committee on Children’s Rights, the Committee on Economic, Social and Cultural Rights which inspect the mentioned agreements. The most important international text related to disability rights in the UN system is the Convention on the Rights of Persons with Disabilities. The United Kingdom signed the Convention on 30 March 2007 and ratified it on 26 February 2009. The Additional Protocol regulating the individual application procedure to the Committee of Disability Rights was signed on 8 June 2009 and ratified on 7 August 2009. In other words, it is possible to make application to the Committee of Disability Rights against the United Kingdom. The United Kingdom is a party to the Discrimination (Employment and Occupation) Convention No. 111 which is specifically concerned with the employment rights of people with disabilities of ILO on 1958. Yet, it is not a party to the Convention No. 159 on Vocational Rehabilitation and Employment (Disabled Persons) Convention of 1983. The Romanian Constitution is a constitution open to international law. Among many provisions of the Constitution that make reference to international law (Art. 2, 10, 18, 19, 20), Article 20 shows the position of the Romanian law in the international law. According to Article 20 titled “International Treaties on Human Rights”;

Constitutional provisions concerning the citizensâ&#x20AC;&#x2122; rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the conventions and other treaties Romania is a party to. Where any inconsistencies exist between the covenants and treaties on the fundamental human rights Romania is a party to, and the national laws, the international regulations shall take precedence, unless the Constitution or national laws comprise more favourable provisions. Therefore, the international treaties that bring in further assurance can be said to be a part of domestic law. Romania has signed the important documents that can be considered associated with the employment right of persons with disabilities. Protocol No. 12 containing the general prohibition of discrimination clause has been signed by Romania. Romania has ratified the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) as well as the Protocol amending the European Social Charter and the Revised European Social Charter. Romania has not ratified the right to collective complaint to the European Committee of Social Rights. Romania has to take into consideration of all Rec(2006)5 recommendation decisions (the Council of Europe the Disabled Action Plan 2006-2015 to encourage the full participation of the disabled to the society and their rights) which are produced by the Council since United Kingdom is a member of the Council of Europe. Since Romania became a member of the EU in 2007, the EU law is applicable in Romania. Romania has approved the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of the Child, which are in the UN system. However, Romania did not sign the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Among these, Romania did not grant the right of individual petition to the Committee on the Rights of the Child,

25 Romania

the Committee on

signed the additional protocol in 2012, but did not complete the ratification process.

Economic, Social and Cultural Rights and the Committee on the Rights of Persons with Disabilities and Committee on Migrant Workers. Romania signed the International Convention on the Rights of Persons with Disabilities on 26 September 2007 and finished the ratification process on 25 September 2008. However, although the Additional Protocol was signed on 31 January 2011 by Romania, it is still not ratified. In other words, it is possible to apply to the Committee on the Rights of Persons with Disabilities against Romania. Romania is a party to the Discrimination (Employment and Occupation) Convention No. 111 which is specifically concerned with the employment rights of people with disabilities of ILO on 1958. Yet, Romania is not a party to the Convention No. 159 on Vocational Rehabilitation and Employment (Disabled Persons) Convention of 1983. The Turkish Constitution is also a fellow constitution with the international law in its current form. It is stated that the Republic of Turkey is an honourable member of the family of world nations with equal rights (Preamble) and is a state based on/ respectful to human rights (Articles 2, 4). The fifth paragraph of Article 90 of the Constitution which makes references to international law and agreements in numerous articles (Articles 15, 16, 38/last, 42/last, 92, 125/1, 148 / 3) is as follows: The international agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail. According to this article, the human rights conventions to which Turkey is a party can be directly applied in domestic law just as other laws and takes priority where there is a conflict. According to the CC, practitioners who have to implement a provision of the conflicting law and the international convention on fundamental rights and freedoms, especially judicial authorities, on the case before them are obliged to implement the International Convention by ignoring the domestic law (CC, 2013c: 41). This rule is a rule of implied abolishment and abolishes the implementation

power of the rules of law which conflict with the Convention regarding the fundamental rights and freedoms (CC, 2013c: 44). In addition, the CC pointed out that the practice in question is not limited to the text of conventions and they also apply for the case laws of the bodies that decide regarding the mentioned conventions (CC, 2013c: 46). In this case, the conventions on the rights of the disabled and the right to work, to which Turkey is a party, as well as the decisions and interpretations of the authorized bodies appointed to evaluate these conventions are directly applicable in Turkish law without considering the possibility of a conflict with domestic law. Moreover, no claim of unconstitutionality can be alleged against this norm. Turkey has signed important documents which could be considered related to the employment rights of the disabled. Turkey ratified the European Convention on the Protection of Human Rights and Fundamental Freedoms (EHCR) as well as the Protocol changing the European Social Charter and the Revised European Social Charter. Turkey has not recognized the right to collective complaints to the European Committee of Social Rights. Protocol No. 12 containing the general prohibition of discrimination clause has been signed, but not ratified by Turkey. Turkey has to take into consideration all Rec(2006)5 recommendation decisions (the Council of Europe the Disabled Action Plan 2006-2015 to encourage the full participation of the disabled to society and their rights) which are produced by the Council since Turkey is a member of the Council of Europe. Since Turkey is not a member of the EU, EU law is not directly applicable in Turkey. Turkey approved the Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of the Child, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families which are in the UN system. Among these, Turkey did not grant the right of individual petition to the Committee 45

on the Elimination of Racial Discrimination, the Committee on Rights of the Child, the Committee on the Protection of Economic, Social and Cultural Rights, and the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families.

Turkey is amongst countries which have signed the Convention on the very first day. It ratified the Convention on 28 October 2009 and signed the Additional Protocol. Although a period of more than five years passed after the signature of the additional protocol, Turkey did not complete the ratification process of the Additional Protocol. Although there was much propaganda that the 2010 constitutional amendment implemented changes in favour of the disabled, the approval law which required a much lower rate than the constitutional amendment was not put on the agenda of the Parliament and the issue was subjected to criticism (Şirin, 2015).

That parliamentary question in 2013 by İzmir congresswoman Hülya Güven from the main opposition party, the Republican People’s Party, on why the additional protocol was not added to the agenda of the Parliament and when it would be ratified was replied with the statement that the convention entered into force with the approval of twenty states and the additional protocol was put into effect with the approval of ten countries, and the convention is already in force in Turkey and the additional protocol was signed by Turkey. It was expressed that the signature to the additional protocol indicated a positive intention for ratification (http://www2.tbmm.gov.tr/d24/7/7-21559sgc.pdf).

Finally on 10 February 2014, the Additional Optional Protocol to the Convention on the Rights of Persons with Disabilities was ratified with the Law No. 6574 and dated 3 December 2014; upon the 29 December 2014 dated and 7287167 numbered letter of the Ministry of Foreign Affairs, in accordance with the Article 3 of the Law No. 244 dated 31 May 1963, it has been decided by the Council of Ministers on 26 January 2015. Therefore, after exhausting all possible domestic law remedies, it has become

26 The

additional protocol was signed but not ratified.

27 The

statement says that it shall recognize the authority of the Commitee soon.

possible to make individual applications to the Committee against the Turkish public power. 28 Here it should be noted that individual applications made to the Committee should consider the decision of the Law No. 6353 which was issued to transfer Article 9 of the Convention entitled ‘accessibility’ and entered into force in 2005 regarding the modifications on the temporary Second and Third articles added to the Law on Making Amendments on the Disabled and Some Laws and Decrees 29 No. 5378 on regular effective remedies. The temporary Article 2 among the articles in question included the provision that “all available official buildings, available roads, sidewalks, pedestrian crossings, open and green zones, sports areas and similar social and cultural infrastructure areas belonging to the public institutions and organizations as well as all kinds of buildings serving the public built by the real and legal persons shall be made suitable for the accessibility of disabled within seven years following the date when this Law enters into force”. The temporary Article 3, on the other hand, includes the provision that “the metropolitan municipality and municipalities shall take the necessary precautions for making the public transport services suitable for the accessibility of the disabled within the city offered by themselves or under their control. Available private and public transport services shall be made accessible for the disabled within seven years after this law enters into force.” However, the law which entered into force on 7 July 2005 extended the envisaged seven year period which was complete on 8 July 2012 through some amendments.

When the extension was brought before CC, the

Court did not see any unconstitutionality regarding the issue. However, as also expressed by Engin Yıldırım who voted against it: There is no guarantee that this gradual transition which could not be implemented in 7 years will be performed over a period of 1 + 2 years. Therefore, we might face a situation in which the gradual transition continues forever. This issue is related to economic, social and cultural rights and it

28 A member 29 It

of the Commitee was selected from Turkey (Şafak Pavey) by October 2014 (CRPD, 2012).

was changed into the Law on the Disabled People.

30 See

Turkey National Report, Chapter 4, II.

should be performed urgently in order to facilitate the access of the disabled to their civil and political rights. This situation is not compatible with Article 10 of the Constitution which envisages positive discrimination for disabled people. The failure to ensure the accessibility for the disabled within a transition period of 7 years and the procrastination of the performance of the accessibility for 3 more years is contrary to Article 10 of the Constitution (CC, 2012). This legislation, the case law related to the law and the counter vote should not be ignored in future applications regarding accessibility about the employment right of the disabled. Finally, Turkey has become a party to numerous (fifty-three of them in force) Conventions of the International Labour Organisation (ILO). Turkey is also a party to the Discrimination (Employment and Occupation) Convention No. 111 of 1958, which is specifically concerned with the employment rights of people with disabilities, of ILO as well as the Convention No. 159 on Vocational Rehabilitation and Employment of the Disabled of 1983. All provisions of this Convention are directly applicable without being claimed unconstitutional in the Turkish law. 2. Disability Rights Committee Case Law The UN Committee on the Rights of Persons with Disabilities (CRPD) issues decisions which have an effect of guidance in the laws of the states subject to the report. An important decision in this sense is the decision of the Committee in Liliane Grรถninger v. Germany (CRPD, 2010). In this case, the applicant complained that the practice procedure of the Social Security program principally pushes his disabled son out of work life. The German Social Security Law foresees the payment of premiums for people who have experienced total loss of workforce and can go back to their previous situation in thirty-six months. The necessary legal conditions for the payment of the premium are job offer by an employer and its implementation. The employment agency then evaluates this situation and then decides on the amount and duration of the premium. Based on this, the Committee evaluated the program in question and found that the program did not prevent pushing the disabled out of work 48

life. The Committee considered the premium payment of the State to people employing the disabled in favour of the disabled and encouraging for employers, however, it concluded that the system in question renders the disabled disadvantageous causing indirect discrimination as the system imposed additional application procedures for employers; and the amount and duration of the premiums are not certain; and the disabled person is not the determining subject of this process. In that sense, the committee concluded that the system violates the right to work and employment (Article 27/1 (h)) under the general principles (Article 3(a), b, (c)), general obligations (Article 4/1(a)) and the prohibition of discrimination (Article 5/11) stipulated in the Convention. This statement of the Committee cannot be interpreted to become effective only in Germany. This statement brings the obligation to all States party to the Convention to ensure that no additional application procedure is imposed on employers and premium payments to those who employ the disabled, and to determine the amount and duration of the premiums in a predictable way and to ensure that the disabled person is the decisive subject of this process. Regarding whether the Social Security system in Turkey has such a quality, it should be noted that the duty to establish a system as pointed out by the Committee is not a preference to be chosen by Turkey and other states parties to the Convention, but a requirement. This obligation might bring in some financial obligations to the State. However, it is not possible to categorically be rid of this obligation by putting forward an excuse of â&#x20AC;&#x153;inadequacy of the financial sourcesâ&#x20AC;? as expressed in Article 65 of Constitution. Another application regarding the employment rights of the disabled brought before the Committee was Kenneth McAlpine v. the United Kingdom (CRPD, 2011). The subject of the case in question was the termination of the labour contract of a disabled person returning late from the resting hours and the claim that it creates discrimination. The Committee rejected this application based on the lack of jurisdiction in terms of the time and did not make any assessment on the merits. Although the Committee did not make any decisions on this matter, we can say that in the case in question, the fact that the disabled person coming late to work is counted as a justified reason for termination is an indirect discrimination. In fact, the 49

termination of the labour contract of those arriving late is applied to everyone equally and is impartial at the first glance. However, the implementation of the norm with a narrow and strict manner might create more negative impacts different from others or even more than them depending on the situation. It is clear that such an effect is indirect discrimination.

In addition, discrimination based on disability does not always make it a must to be a disabled on whom the treatment is directly implemented. Where a non-disabled employee who has a disabled child requests more flexible working hours to take care of his child, the rejection or abuse of this request or his dismissal due to late arrival can give rise to â&#x20AC;&#x2DC;resulting discriminationâ&#x20AC;&#x2122; (ECJ, 2008).

The relevant legislation and judicial decisions in the countries subject to the report are given below.

However, it should be noted that the directly superior constitutional provisions

impose the duty to eliminate indirect and resulting forms of discrimination to the legislature, the executive and the judiciary organs in working and other areas of life with the openness of the countries subject to the report to the international law and judiciary. Where this duty is not fulfilled by the legislative, executive or judicial organs, the constitution will be deemed to have been violated. Therefore, making an assessment according to the international law and the constitution under the existing norms is not possible; yet especially in Turkey and Romania these are required to be transferred to Constitutional Courts for abstract and concrete norm control.

31 For

the Supreme Court decisions in Turkey, see. 3rd Part, I, 1, c.

PART THREE

LEGAL REGULATIONS ON THE EMPLOYMENT OF THE DISABLED (Research Assistant Canan Ünal, Assoc. Prof. N. Münci Çakmak) 32

Regulations and practices in the legal systems of all three countries have been diverse and varied with regard to disability employment rights. This part of the report intends to provide a comparative assessment of statutory regulations and practices regarding the disabled in the Turkish, United Kingdom and Romanian legal systems. Thus, first of all, the laws of each country shall be separately explained and the data in the national reports prepared under the project “I can work!” shall be considered as the basis of these explanations. Finally, the three legal systems will be evaluated in terms of similarities and differences.

I. LEGAL REGULATIONS IN TURKISH LAW

There is no single regime for employees in the Turkish law. Therefore, disabled employees have been subjected to different branches of law. This report will examine disabled employees as dependent employee groups in terms of employees and civil servants. Identifying whether an individual (disabled or non-disabled) is an employee or a civil servant is important in determining the law to be applied to him. Although employees are subject to the Labour Law, civil servants are subject to the rules of the Administrative Law. In other words, employees are subject to private law, whilst civil servants are subject to public law.

Firstly, disabled employees will be discussed. ‘Employee’ is defined as the real person who works dependent in exchange for a salary based on a business contract. There is a strict dependency between the employer and the disabled employee which are subject to the Labour Law of the disabled. This dependency is a personal dependency and the parties are not equal. Therefore, in accordance with the contemporary legal systems, the Turkish Labour Law is considered as the law of protection of the workers and 32 In

this chapter, the title “Employment of the Disabled under the Administrative Law” was authored by Assoc. Prof. Dr.

N. Münci Çakmak, while the rest belongs to Res. Assistant Canan Ünal.

includes regulations which protect the workers. In cases where the employee is disabled, it is obvious that the need for protective regulations will increase. Dependent disabled employees can also work as a civil servant or as another public official. According to Article 128 of the Constitution, “the fundamental and permanent functions required by the public services that the State, state economic enterprises and other public corporate bodies assigned to perform in accordance with the principles of general administration, shall be carried out by the public servants and other public employees.” According to Article 4 of the Law on Civil Servants No. 657, “the public services are performed by the civil servants, contractual employees, temporary personnel and workers.” The concept of the other public officials in the Constitution as well as contractual personnel and temporary personnel specified in the Civil Servant Law No. 657 are technical classifications and are located beside the status of civil service which is a general rule. According to Article 4 of the Law No. 657, “Regardless of the type of the organization, those who are employed to perform the main and permanent public services which are carried out in accordance with the general administrative principles by the state and other legal persons are considered civil servants in the implementation of this law. Those who are assigned and authorized in the works such as general policy determination, research, planning, programming, management and supervision in institutions other than those defined above are also considered civil servants.” 1. Employment of the Disabled under Labour Law It is possible to examine regulations in Turkish law on the disabled who work and will work with an employment contract under three titles. These are: (i) preparing the disabled for employment, (ii) the obligation to employ disabled workers and sheltered workshops and incentive methods, and (iii) disability-based discrimination. There have been significant amendments in legislation regarding disability rights especially recently in Turkish law. This report will outline the regulations which are the fruits of these amendments; and examine aspects of the regulations which are open to criticism. 54

a. Preparing the Disabled for Employment and Mediation According to the 2010 data of the research on the problems and expectations of the disabled by the Turkish Institute of Statistics, 41.6% of the disabled individuals are illiterate while 18.2% could not finish school although they are literate. While the rate of primary school graduates is 22.3%, those who could finish primary school and secondary school and equivalent are 10.3%. Those who could complete the minimum high school education are just 7.7%. 33 Compared to individuals without disabilities, disabled individuals need more vocational training due to their disability. Thus, it is a requirement, due to the equality principle of the Constitution, to provide vocational training. However, the data states that these individuals lack the assurance required for the right for education beyond the deficiencies regarding the vocational training of the disabled. The same research states that the 25.6% of the disabled expect an increase in educational opportunities, while 28.7% expect an increase of employment opportunities. 34 Regarding vocational education, both the Law on the Disabled No. 5378 35 and the Legislation on Domestic Employment Services

(“Work Placement Legislation”) include regulations

and also articles on providing guidance and professional consultants and education services for professional habilitation, rehabilitation, guidance for the disabled to establish their own enterprise. According to the law, necessary precautions are taken to ensure that the disabled can choose a profession and obtain education in that area. In accordance with the

33 The

data are related to the individuals aged six and above, TÜİK, The Survey on the Problems and Expectations of the

Disabled, 2010, Distribution of the Gender, Location, Disability Rate, Age Group and Education Level of the Disabled Individuals (http://www.tuik.gov.tr/PreTablo.do?alt_id=1017, Access date: 6 April 2015). 34

TÜİK, The Survey on the Problems and Expectations of the Disabled, 2010, The Distribution of the Expectations of

the Registered Disabled Individuals from the Public Institutions and Organizations According to the Disability Type (http://www.tuik.gov.tr/PreTablo.do?alt_id=1017, Access date: 6 April 2015). 35 Official

Gazette, 7 July 2005, 25868.

36 Official

Gazette, 7 July 2005, 25868.

profession and business analysis made by the Ministry of Labour and Social Security, professional habilitation,

rehabilitation

and education programs are developed by the

Ministry of Education and the Ministry of Labour and Social Security (Art. 13).

The vocational habilitation and rehabilitation services for people with disabilities can be carried out by municipalities and other natural or legal persons as well as by public bodies and institutions (Art. 13 / II).

The necessary measurements are taken on the continuous employment of the disabled in the workforce market and work environment, including the development of the guidance and vocational consultancy services on establishing their own businesses (Art. 12/I).

The legislation on employment which regulates the procedures and principles regarding the services offered by the Turkish Employment Institution to those who seek jobs as well as to employers include regulations regarding the placement of the disabled.

The Turkish Employment Institution considers the qualities and the conditions required by the professions as well as the strengths of the disabled. It then provides guidance on the most suitable job and profession according to the desires and situation and makes sure that they benefit from the related training opportunities on the profession and provides vocational training, guidance and rehabilitation programs or vocational training programs at the right places in the recruitment process and employment articles (Art. 12/I). 39

37 Habilitation

in the law is defined as the services for implementing physical, social, mental and professional skills to the

disabled aiming at ensuring the disabled to meet his personal and social needs and maintain his life independently (Art. 3/1, h). 38 Rehabilitation

is the services for improving physical, social, mental and professional skills aiming at reducing the impact

of the disability due to any reason to the minimum and ensuring the disabled to maintain his life independently (Art. 3/1, k). 39

In order to offer these services, determine the tasks that the disabled can do in the workplace and the provisions to

which the disabled will be subject except the general provisions and to establish a data sharing system accessible by the institutions regarding the disabled; The Institution cooperates with the Ministry of Family and Social Policies General Directorate of the Elderly and Disabled Services, Ministry of Justice General Directorate of Prisons, Ministry of Health General Directorate of the Health

The fact that the Turkish employment institution can perform services in terms of vocational rehabilitation through private real and legal persons have been considered as a positive development due to the prevalence of the services (Engin, 2009: 17).

b. Employing Disabled Employees i. The Requirement to Employ Disabled Employees The main method of ensuring the employment of the disabled in Turkish law is the quota system. The quota system has limited the contractual freedom of employers and has imposed the duty to employ disabled people in certain situations. Thus, contractual freedom which is a main principle in law has been limited for social purposes and thus, the employment of the disabled was targeted. Another regulation in the statute which makes it mandatory to employ disabled employees, is the obligation for employers to employ again those who have overcome their disabilities and wish to work again. Although the disability no longer exists, the likelihood of continuing disability and the obligation to employ again these individuals can serve disability employment.

In order to have the obligation to employ disabled people under the quota system in Turkish law, first of all the workplace should fall within the scope of the Labour Law or the Maritime Labor Code.

aa. The Requirement to Employ a Quota of Disabled Employees 1) Overview Article 30 of the Labour Law regulates the obligation to employ disabled employees for employers who hire 50 or more workers. According to the article in question,

Services, the Ministry of Education General Directorate of the Special Education and Counseling Services, General Directorate of the Special Education Institutions and Ministry of Labor and Social Security General Directorate of the Occupational Health and Safety. The procedures and principles regarding the cooperation are determined with protocol (art. 12/II). 40

It should be noted that there is no single Labour Law in the Turkish Labour Law. Apart from these, the business

relationships are regulated in the Press Business Code and the Turkish Code of Obligations. However, the obligation to employ the disabled is not subject to the Press Business Code and the Turkish Code of Obligations for the workplaces.

different rates of disabled worker quotas have been prescribed in terms of private sector employers and public sector workplaces. While the disabled employee quota is 3% for the private sector, it is 4% for the public sector. Obviously there have been different criteria in regulating the obligation to employ the disabled for the public and private sector workplaces. Disabled employees within the quota should be employed in the positions most suitable for their professional, physical and psychological status. In 2014, the number of businesses in Turkey, with a workforce of fifty or more employees obliged to employ a quota of disabled workers is 17,773. While a total of 108,343 disabled workers must be employed at these businesses, in reality only 84,706 have been employed (Kılıç: 2015). Thus, the quota application has achieved a success of around 78%. 2) Determining the employers who are required to employ a quota of disabled employees The Turkish law does not foresee the obligation to employ the disabled for employers with a workforce of less than 50. In determining employers who fall within the scope of obligation to employ disabled workers, i.e. when calculating whether the workforce is greater than fifty, the total number of workers in all workplaces located within the borders of the same province are considered (f. 1/c. last). In other words, while the total number of employees is considered where the employer has different branches of the same business within the same province, employees working in different branches of the same business but in a different province are not considered. For instance, forty employees are employed in a shoes workshop of employer, X in Istanbul. The same employer has fifteen workers in his olive oil workshop in Çanakkale. In this case, as the total number of employees within the same province does not exceed fifty, employer X is not required to employ disabled employees. However, if his oil workshop had also been in Istanbul, the consequence would change and the employer would be required to employ disabled employees. In determining the number of employees to be employed, employees who are employed under an employment contract for a limited or unlimited period are taken as the basis. Those who are employed under part time contracts or a are converted into 58

full time employment. While calculating the ratio, fractions up to one half are not considered and those which are half or more are converted into full (f. 2). In the identification of the number of employees in accordance with the prohibition to employ disabled workers in underground and underwater works, workers in the underground and underwater work shall not be considered for the calculation according to the law (f. 4). In addition, employees employed by the employer under a temporary business relationship according to the provision of Article 7 of the Labour Law or apprentices and trainees are also exempt in the determining of whether the employer has the obligation to employ disabled workers. 3) Identifying Disabled Employees According to Paragraph 1 of Article 30 of the Labour Law, those who were the employees of the workplace and then became disabled have priority in the identification of the disabled employee quota (f. 2/c. last). The employer finds the employees they are required to employ through the Turkish Employment Institution. The skills of those to be employed, in which positions they can be employed, special duties they will be responsible for besides the general terms in workplaces, strengths for the profession, and how they will be recruited by the employer are all regulated by the regulation issued by the Ministry of Labor and Social Security after obtaining the opinion of the Ministry of Family and Social Policies (f. 3). The regulation in question is the regulation on the recruiting services. While the regulation does not specify any differences as to disability groups or causes of disability in respect of the disabled employees to be employed under the quota system, it does specify that there should be a disability of at least 40% and that this is documented with a Medical Board report. Indeed, according to the recruitment regulation, the disabled is defined as â&#x20AC;&#x153;those whose body function loss is documented in a Medical Board report to be at least 40% among the people who have difficulty in adapting to the social life and meeting their daily needs due to the losses of physical, mental, spiritual, sensual and social capabilities at various levels due to any reason at birth or later on and those who need protection, care, rehabilitation, counseling and support servicesâ&#x20AC;? (Art. 2/I, e).

This regulation states that employers are to find the employees they are required to employ through the Institution. Two differing approaches have been adopted. The first of these is the obligation to inform and register at the institution if a disabled person is recruited without the mediation of the institution by the private sector employer within maximum fifteen days from the start of the work. Failing this, it is stated that this employer will not be considered disable (Art. 13/II). This approach is appropriate as it gives the employer the freedom to choose the contract; whereas the disabled quota limits the freedom of contract. The notification and registration requirement aims to ensure that the institutionâ&#x20AC;&#x2122;s records are updated, and that employer quotas are followed up correctly (Engin, 2009: 19). However, it is difficult to state that the other approach of this regulation is appropriate. According to the regulation, if the open position is not filled by choosing from the disabled job seekers who are introduced by the institution or registered at the institution portal, employers have to find the disabled worker on their own (Art. 15/II). The regulation shifts the duty of the institution, which is the sole responsible institution for providing disabled employees as per Article 30 of the Labor Law, to the employers, and contrary to the above approach, this has created an restrictive effect on contractual freedom. According to the principle of legality, constitutional freedom may be restricted only by law. Therefore, while contract freedom is limited only by law, it is not consistent with the law to bring in such an arrangement with this regulation (Engin, 2009: 19). No legal sanctions are mentioned in the Labour Law where the employer does not employ a disabled worker within the quota system. However, Article 101 of the Labour Law foresees administrative penalty in that case. The fine in question is high in terms of amount and is intended as a deterrent.

Accordingly, for each disabled person who is not employed, the

employer has to pay 2.095 Turkish Liras as administrative penalty each month. When considering that, for the same period the gross minimum wage is 1,273.50 Turkish Liras and that disabled employees within the quota are paid the minimum wage, the amount paid as administrative penalty seems quite deterrent. However, employers who want to avoid this penalty, in 41 For

the opinion considering the increase of the administrative penalties by the lawmakers as a positive development,

see UĹ&#x;an, 2003: para. 150.

practice, show the disabled as insured and pay them the minimum wage and do not request or even refuse the active work of these individuals. As a result, it must be stated that the high amount of the penalty does not in fact realize what is intended in reality. The penalties to be charged in accordance with this article are used in projects such as support technologies that will ensure the employment of the disabled, the recruitment of the disabled, orientation to their work and workplace and such similar projects. The issues pertaining to the use of the collected fine are decided by a commission consisting of one representative from the Ministry of Labor and the Social Security General Directorate of Labor, the General Directorate of Occupational Health and Safety, the Ministry of Family and Social Policies, the General Directorate for the Services for the Disabled and the Elderly, the Ministry of Justice General Directorate of Prisons as well as top organizations which represent the highest numbers of the employees and employers and the top organization that represents the highest number of disabled people under the coordination of the Turkish Employment Institution. The operation procedures and principles of the Commission regulated with the regulation are issued by the Minister of Labour and Social Security. The regulation in question is the regulation on the Commission authorized to use administrative penalties collected from employers who do not employ the disabled and ex-convicts. 42 With this Regulation, the Turkish Business Council has further paved the way for social integration with the inclusion of the disabled in worklife; disabled individuals can be entrepreneurs and employers. Administrative fines collected from employees contravening the disability quota will be used to aid the employment of the disabled. According to the said regulation, a monetary support of up to 36,000 TL will be made to the disabled to establish their own businesses.

This regulation also supports projects relating to support

technologies that will allow the disabled to find job; projects enabling the placement of the disabled into employment, and their compliance to the work and workplace; projects on vocational training and rehabilitation aimed at increasing the employability of people with disabilities. 42 Official 43 The

Gazette, 09 January 2014, 28877.

support for the establishment procedure is maximum 2,000 TL; and the business expenditure support is maximum

4,000 TL; and the establishment support is maximum 30,000 TL.

According to the guidelines issued by the Turkish Employment Agency on the subject, both the disabled themselves or legal entities (public institutions including central and local agencies, civil society organizations, private sector businesses, universities, etc.)

can

apply to these projects. Here, the disabled are defined as people who can work but lack at least 40% of their working capability due to losing their physical, mental, emotional and social skills at varying degrees as documented by the Health Committee Report Issued for the Disabled. The subject project support is significant in allowing the disabled to take a more active and efficient part in work life. However, the condition (as stipulated by projects aiding the disabled to establish their own businesses) that the established business actively operates for at least two years after establishment, or failing this that monetary support made by the organisations will be recovered with legal interest, is likely to create problematic results. In our opinion, monetary support for disabled entrepreneurs alone is not enough, the continued support of the Turkish Business Association is important and necessary in the implementation of the project. bb. The requirement to reemploy the employee whose disability is eliminated. Another issue arranged under the obligation to employ the disabled, beside the disabled quota system in Article 30 of the Labour Law, is the obligation to reemploy the former employee whose disability is eliminated. The employer is required to recruit these to their former or similar positions if there is vacancy, if there is not, by favouring that person to other people for a future position (f. 5). The doctrine on determining whether the disability has been eliminated is controversial, because in the Law on Social Insurances and General Health Insurance No. 5510, disability is listed as at least 60% loss of workforce or income power in the profession. According to the provision of Article 30/V of the Labour Law, looking for the conditions in the Law No. 5510, in order for the requirement to make a new employment contract with the worker whose disability is eliminated does not comply with the purpose of the provision which aims for the protection of employees and limits the implementation area of the article (Ekonomi, 1987: 104, dn. 124; Centel, 1994: 111; Keser, 2004: 43; S端zek, 2013: 311). Therefore, when applying the

44 It

is obvious that the legal persons cannot prepare the projects for establishing the own business of the legal persons.

provision of Article 30/V of the Labour Law, a minimum 60% loss should not be sought in the workforce or the ability to earn in that profession for the emergence of disability and employees should not be expected to fully gain his working ability for the elimination of the disability. In other words, it should be considered sufficient when the disability which prevented the person from working is eliminated to a degree that would not prevent him from working again in the workplace (Tunçomağ ve Centel, 2013: 87-88; Demir, 1999: 216; Mollamahmutoğlu, 2008: 411; Caniklioğlu, 2002: 69-72; Süzek, 2014: 311). If the employer does not reemploy the former employee whose disability is eliminated and who requests to be employed, he is to pay a compensation of a salary of six months (f. 5/c. son). While Article 101 of the Labour Law foresees administrative penalty for those who do not reemploy the disabled, employers and employer deputies who do not execute their duty to create an employment contract with the employee whose disability is eliminated are not obliged to pay any administrative penalty. ii. Sheltered Workshops aa. Overview The sheltered workshop practice, implemented for the disabled whose integration to the labour market is tough due to their disability, found its legal basis in Turkish law with the Law on the Disabled dated 2005 No. 5378. Sheltered workshops targeted not only a workplace which aims at production and profitability, but also a working environment aimed at psychosocial and vocational rehabilitation (Seyyar, N/A). However, it is difficult to state that the provision of the law in question and the regulation based on it has a serious implementation.

In fact, contrary to the target, the

protection remained limited to a theoretical context. Therefore, there have been important changes in the legislation on the subject. The new regulation

45 For

issued for this purpose defined the protected work place as “the

the criticisms of the doctrine, see: Alpagut, 2006: 35-36; Aktekin, 2010: 153; Engin, 2009: 26; Makas, 2011: 13.

46 Regulation

on Sheltered Workshops, Official Gazette, 26 November 2013, 28833.

workplace supported technically and financially by the state and of which working environment is specially arranged in order to provide employment for the mentally or psychologically disabled individuals who have difficulty in joining the labour marketâ&#x20AC;? (Art. 3/I, Ă§). While the function of creating employment is taken as basis, only protection regarding the mentally or psychologically disabled are mentioned. Following this, the law dated 6 February 2014 made important amendments and innovations regarding sheltered workshops and stipulated financial support to encourage the practice. bb. Conditions for acquiring the sheltered workshop status Acquiring the status of sheltered workshop is contingent on strict conditions (Art. 4). The first is to be a workplace which is registered to the Turkish Labour Institution and include at least eight individuals who are at least 40% mentally or psychologically disabled and are at least 15 years of age. The regulation in question ended the employment creation function of sheltered workshops for the disabled except for those with mental and psychological disabilities. In order to acquire a sheltered workshop, the employer should submit an application and written documents stipulated in the regulation to the provincial Directorate of Family and Social policies. There is a condition that the rate of the number of disabled people to work in the sheltered workshop to the total number of workers should be at least 75%. This rate is determined by considering the workers employed with indefinite-term employment contracts and fixedterm employment contracts. Employees working with part-time employment contracts are converted to full-time workers considering their working hours. Fractions up to one half are not considered in the calculation of rate and half or more are converted to full numbers. It seems difficult for individuals with mental or emotional disabilities to mesh with those without disabilities, or to phrase it more accurately, with those who do not have mental or emotional disabilities, at a business satisfying these conditions. In this case, even if a business comprised of solely, or to a large extent, disabled individuals

47 The

Law No. 6518, Official Gazette, 19 February 2014, 28918.

of a disability group includes these individuals to the working life, it cannot provide for the social implications. For this reason, sheltered workshops should be approached with caution as they can support social exclusion. Those workplaces which are deemed appropriate as a result of the assessment of the Commission among the applicants are issued a document of sheltered workshop status by the governor. cc. Incentives for sheltered workshops. The practice of the sheltered workshop is dependent on the application of the employer, and therefore, their will. The employer is expected to meet production and profitability as well as psychosocial and vocational rehabilitation. On the other hand, meeting the conditions to acquire the sheltered workshop state is not easy. It is difficult to claim that a workplace that can meet these conditions can realize its purpose of production and profitability. Therefore, sheltered workshops had to be encouraged, thus, the legislation included regulations on financial incentives for this purpose. The first among these is the premium incentive to the employer. The premium in question is not limited to sheltered workshops; therefore explanations shall be included under the titles below. Other incentives regarding sheltered workshops were proposed by many amendments in the law dated 6 February 2014 in the Labour Law, Income Tax Law and Unemployment Insurance Law. According to these; •

The salaries given by the employers to the mentally or psychologically disabled in

sheltered workshops on time and of which the legal obligations were met on time and completely shall be partially provided to the employer by the Treasury (Labour Law add. Art. 1). •

The annual gross amount of the disabled employees employed in the sheltered

workshop shall be deducted from the income to be stated in the income tax statement (The Income Tax Law Art. 89/XIV). •

The

Unemployment

Insurance

employer

the

mentally

psychologically disabled whose integration to the labour market is difficult

and who is employed in sheltered workshops shall be met by the Treasury (The Unemployment Insurance Art. 49/I). Despite all these supports, practices on business acquiring sheltered workshop status remain limited and reliable data cannot be obtained regarding this issue. This means that despite all these conditions, giving only premium incentives have not been sufficient to trigger a desire amongst employers. It should be noted that the criticism made in respect of doctrine in the first year the regulation on sheltered workshop entered the Turkish law maintains its appropriateness and validity: “Sheltered workshops should not be evaluated as a final purpose, but an intermediary in the transition to employment and this purpose should be realized by training the disabled in the needed area” (Alpagut, 2006: 36). iii. Premium incentives According to Article 30 of the Labour Law, all of the employer shares from all of the insurance premiums calculated over the income lower level for the premium for the disabled insured employed in the private sector as well as the disabled insured employed in sheltered workshops specified in Article 14 of the Law No. 5378 as well as employer shares of the insurance premiums calculated over the lower level of income-based for the premium for each disabled for the employers who employ more workers than the required in the quota and employ the disabled despite not being required to do so are completely met by the Treasury. Increasing the premium incentive which was 50% with the law dated 6 February 2014 for employers who employ more disabled employees than required and meeting the entire employer share by the Treasury has been an appropriate change. In order to benefit from the disabled insurance incentive provision, the part that should be paid by the insured for the insurance premiums accrued due to all monthly premiums and service documents issued for a month as well as the employer’s share

48 The

Law No. 6518 on the Amendments on the Decree of the Ministry of Family and Social Policies Organization and

Duties as well as some Laws and Decrees, Official Gazette, 19 February 2014, 28918. 49 For

the opinion on the doctrine, see Caniklioğlu, 2008: 170.

which is not met by the Treasury should be completely paid (Caniklioğlu, 2011: 184). For this reason, however much disparities in incentive rates were abolished with the 2014 amendments as to whether disabled employees were within the disable employee quota or within the scope of sheltered workshops, and despite the entirety of the employer’s share being paid by the Treasury, it is not possible for the employer to benefit from the disability insurance incentive if amounts which correspond to the insurance shares of insurance premius accrued as a result of other annual premiums and service documents, and amounts which are not met by the Treasury which correspond to employer shares have not been paid. According to this paragraph, if the employers pay late the premium he is required to pay, the overdue interest resulting from the delay of the payment to be made to the Social Security Institution by the Treasury is collected from the employer. The amount of premium met by the Treasury is not considered as an element of expense or cost in the income and corporate tax applications (f. 6). c. Disability-Based Discrimination i. Overview The main discrimination that the disabled face is the practices they encounter in work life. The definition of disability-based discrimination in the Turkish Constitutional Law was given above. The issue was regulated also at a legal level. The Labour Law No. 4857, the Law On Disability No. 5378 and the Turkish Criminal Law No. 5237 include provisions on disabilitybased discrimination in business relations. Although the provisions should be implemented together, there are differences in approach amongst the laws. The changes expressed as a requirement of the EU membership have been implemented and as a result, regulations adhering to the EU aquis on the prohibition of discrimination, and therefore, disability-based

50 See

Chapter 2, I, 2.

51 Official 52

Gazette, 10 June 2003, 25134.

Official Gazette, 12 October 2004, 25611.

53 For

example, Labour Law General Preamble: “The norms that are not yet present in the Turkish legislation within the

scope of the full membership process to EU and which bind automatically the EU countries, need to be included in the Turkish Labour Law. This necessity means making changes in many laws especially the Labour Law within the scope of harmonization process.”

discrimination, have been included. Below, the legal regulations shall be categorized according to the enforcement to be implemented. ii. Legal enforcement aa. Disability-based discrimination according to the Labor Law No. 4857 Although the title of Article 5 of the Labour Law is ‘The Principle of Equal Treatment’, the prohibition of discrimination was especially regulated in the text of the article. Specifying disability as a basis for discrimination occurred with an amendment law on 6 February 2014 No. 6518. According to the Labour Law, if the prohibition of disability-based discrimination is violated in business relations or in its termination, it is stated that a compensation up to four months of salary which is referred to as discrimination compensation shall be made and the disabled employee may request rights he has been deprived of (Art. 5/VI). The word salary here means the net salary and does not include additional payments such as bonuses, premiums and fringe benefits (Şahlanan, 2003: 35-36; Çelik, Caniklioğlu and Canbolat, 2014: 244;Caniklioğlu and Canbolat, 2004:230; Süzek, 2014: 476). In case of disability-based discrimination, according to the Labour Law provision Article 5/VII, the burden of proof belongs to the worker. However, if the worker can show a situation which strongly displays the possibility of a violation, then the employer is obliged to prove the non-existence of such a violation (Art. 5/VII, last sentence). Further, the invalidation of the process constituting discrimination, as well as pecuniary and non-pecuniary damages may be possible, together with granting the employee the right to terminate the employment contract for justified reasons. (Yıldız, 2008a: 375 vd.; 2008b: 86). If the termination of the employment contract of the employee is due to disabilitybased discrimination, the legal consequences will differ depending on whether the

Official Gazette, 19 February 2014, 28918.

The opinion regarding that the discrimination reasons in the arangement made in the doctrine before the amendment

through analogies and therefore, the “disability” based discrimination is prohibited with this form of the arrangement; however, the “disability” basis should be added to the article see. Alpagut, 2005: 155; Yıldız, 2008a: 146; 2008b: 82; Ünal, 2012: 179.

employee is under any insurance, and the termination will constitute ill-intentioned or unjustified termination (Yıldız, 2008b: 86). bb. Disability-based discrimination according to the Law on Disabilities No. 5378 The definition of disability-based discrimination on a legal level was determined following the amendment made to the Law on Disabilities No. 5378 with the law dated 6 February 2014 No. 6518. Accordingly, disability-based discrimination is “all kinds of distinction, exclusion or limitation performed based on the disability against using the human rights and fundamental freedoms completely and under the equal conditions with others or benefiting from the in political, economic, social, cultural, civil or any other domains.” With the amendments in question, all forms of discrimination-based disability including direct and indirect discrimination are eliminated (Art. 4/A/I), and it is stated that the necessary precautions will be taken in order to make reasonable arrangements for eliminating discrimination against disabilities (Art. 4/A/II). In addition, it is clearly stated in the law that the special precautions taken to ensure the disabled benefit from rights and freedoms shall not be considered as discrimination (Art. 4/A/III). Reasonable arrangements are defined as “necessary and appropriate changes and measures needed in a particular case to ensure the disabled to use and enjoy human rights and fundamental freedoms equally and fully as the other individuals, that do not bring unconscionable or excessive burden” (Art. 3/I, j). Precautions must be taken to eliminate obstacles encountered by the disabled in employment or whilst seeking employment, and it is mandatory for appropriate adjustments to be made at their place of work by institutions and organisations who have duties, authority, and responsibility in this regard (Art. 14/IV). This amendment defined direct and indirect discrimination for the first time in our legislation. According to this, direct discrimination is “all kinds of different treatments which prevent, limit and complicate equal benefiting the rights and freedoms of the disabled when compared to those comparable and are based on the disabilitybased discrimination” (Art. 3/I, a). Indirect discrimination is “to put the disabled in a disadvantageous position which cannot be objectively justified in terms of his

benefiting from the rights and freedoms connected with the disability-based discrimination as a result of all actions, processes and practices which do not appear as discriminative.” (Art. 3/I, b). Article 14 of the Law on Disabilities No. 5378 has prohibited discrimination based on disabilities starting from the process of recruitment (Alpagut, 2005: 155; Yıldız, 2008a: 146; Ünal, 2012: 179). In addition, it is regulated that these people cannot be treated differently from others due to their disabilities in any way that would result against the favour of the disabled (f. III). However, it should be noted that while the law has mentioned prohibition of disability-based discrimination, there has been no legal enforcement in case of its violation. This gap in the article by the doctrine is claimed to be possibly recovered by the implementation of the regulation regarding discrimination compensation at an amount of up to four months of salary as prescribed in Article 5 of the Labour Law (Alpagut, 2005: 155; Doğan Yenisey, 2006: 68; Yıldız, 2008a: 146; Engin, 2009: 24; Ünal, 2012: 179). In the provision of Article 14/III of the Law numbered 5378, some institutions and organizations and employers have been imposed with obligations regarding disability-based discrimination. The scope of obligation is to take the necessary precautions in employment process regarding the elimination of obstacles and difficulties that may be encountered by the working disabled or those seeking employment, and to also make reasonable adjustments in their place of work. The recruitment regulation imposed the obligation to prepare workplaces ensuring comfortable working conditions for the disabled and the appropriateness of the job to the disabled worker, to take the necessary precautions for their health, and to provide the necessary tools and equipment for the employers (Art. 18/I). In addition, it is stated that the start and end of working hours can be adjusted to the situation of the disabled, if possible (Art. 18/II). According to the survey on the problems and expectations of the disabled of the Turkish Institution of Statistics in 2010, it is seen that the 55.7% of the disabled wish to work in positions which do not include heavy physical labor and effort, 33.3% wish to use shorter breaks during working hours due to their health problems, 27.6% wish 70

to work at part time jobs and 10.7% expect to use special assistance and equipment while performing their duty. The lawmakers considered the special situation of employees who have disabled children which is a different reflection of the request in question. The amendment in the law in April 2015 introduced the obligation to grant paid leave of up to ten days altogether or partially within a year based on a disability report of the child being treated for disability or chronic illness at a minimum rate of 70% as long as it is used only by one of the working parents thanks to the Article added to the Labour Law. We believe that there are no obstacles against granting more paid leave rights if required. In addition, it is appropriate to bring in a minimum obligation with the law. The fact that these regulations prescribed obligations for the employers along with the related institutions and organizations for eliminating the obstacles encountered by the disabled in their workplaces have been considered as a serious step taken for legal equality by going beyond the prohibition of discrimination within the harmonization process to the EU in terms of the doctrine (Doğan Yenisey, 2006: 73). However, we should note that the practice is not as satisfactory. iii. Penal and administrative enforcement In case of violation of the discrimination prohibition, there are penal and administrative enforcement together with legal and administrative enforcement. The offence titled ‘Hatred and Discrimination’ as regulated in Article 122 of the Turkish Criminal Law was amended in the law dated 2 March 2014 and No. 6529. The previous regulation was criticized for not being effective and the enforcement was not determined (Yenidünya, 2006: 115). According to the new arrangement, a person who prevents ‘the recruitment of a person’ due to hatred resulting from

See, TÜİK, The Survey on the Problems and Expectations of the Disabled, 2010,The Distribution of Arrangements/

Working Conditions Needed by the Working Registered Disabled People According to the Disability Type (http://www.tuik.gov.tr/PreTablo.do?alt_id=1017, Accessed date: 6 April 2015). 57 The

Law No. 6645 on the Amendment of Occupational Health and Safety and some Laws and Decrees, Official Gazette,

23 April 2015, 29335. 58 The

Law on the Amendment of Various Laws for the Improvement of the Fundamental Rights and Freedoms, Official

Gazette, 13 March 2014, 28940.

disability shall be punished with a prison punishment starting from one year up to three years. The deterrence of the enforcement increased since the punishment of the crime was increased with the amendment, yet it is hard to defend that its practice is more effective. On the contrary, by bringing a new regulation stating that this type of crime can be committed with ‘the hatred motive’ which is hard to prove; the application area of the article was largely limited and even the article became inapplicable (Pamuk, 2015: 138). We should note that intention is not sought or the will of the perpetrator is not considered in the emergence of discrimination in terms of Labour Law. This situation results in considering many events which are qualified as the disability-based discrimination in the business relations as a crime.

We should note that since the regulation in question does not regulate the continuation or termination of the work, criminal enforcement is only limited to recruitment and the continuation and termination of the work not as subject of criminal responsibility due to the narrow interpretation of the criminal provisions and the principle of legality (Alpagut, 2006: 155; Engin, 2009: 25; Ünal, 2012: 180).

In case of the violation of the principles and obligations in Article 5 of the Labour Law, according to Article 99 of the Labour Law, the employer and employer’s deputy has to pay an administrative penalty. Therefore, the violation of the provisions of the prohibition of discrimination is considered as a fault. According to this, in the continuation of or termination of the business relation, the violation of the prohibition of disability-based discrimination is a fault and is subject to administrative enforcement, not criminal enforcement. 2. Disability Employment under Administrative Law

There have been amendments regarding the employment of the disabled as civil servants with various laws, regulations and communiqués including the 1982 Constitution. The regulations have been shaped in two dimensions in general. Firstly, regulations allowing the disabled to acquire rights at equal status with the non-disabled without exposure to any discrimination. Secondly, regulations including the special rights granted to the disabled by the legislation due to their disability. 72

a. The 1982 Constitution and Disability Rights in Public Employment According to Article 49 of the Constitution: Everyone has the right and duty to work. The State shall take the necessary measures to raise the standard of living of workers, and to protect workers and the unemployed in order to improve the general conditions of labour, to promote labour, to create suitable economic conditions for prevention of unemployment and to secure labour peace. This article regulates the right to work in a general way. It is not a regulation directly related to the disabled. The disabled take advantage of the rights granted in this article on grounds of the word “everyone”. The provision of the article is comprehensive regardless of the disabled/non-disabled nature. According to Article 50 of the Constitution which regulates the working conditions and right to rest: No one shall be required to perform work unsuited to his/her age, sex, and capacity. Minors, women, and physically and mentally disabled persons, shall enjoy special protection with regard to working conditions. This article draws the general framework of both the public and private sectors in terms of working conditions. The working condition criterion in the first sentence that applies to everyone was identified as age, gender and power. In the second sentence, regulations have been made on the persons in need of protection, in particular in terms of working conditions. As can be seen from the content of the article, the disabled are included in the “physically and mentally deficient” group. This shows us that the disabled are regarded as insufficient from physical and mental aspects. We believe it would be more correct to say “those different in terms of physical and mental aspects” or shortly, “the disabled” in the regulation instead of the word and criteria “incompetence”. It does not sound pleasant to qualify the disabled as inadequate in terms of everything related to working conditions. While it is correct that the disabled may not be able to work in certain working conditions, it would be a more elegant form of expression to qualify them as a unique case arising from differences instead of disabilities.

According to Article 70 of the Constitution regulating the right to enter public service: Every Turk has the right to enter the public service. No criteria other than the qualifications for the office concerned shall be taken into consideration for recruitment into the public service. Two points are emphasized in this article. First of all is the recognition of the right to enter public service, and secondly is that distinction can be made in the recruitment. Here the word ‘Turkish’ is selected instead of the word “everyone” to deny the right to enter public service for foreigners. Therefore, the word ‘Turkish’ in the article can be interpreted as anyone who is a Turkish citizen. Thus, in terms of the issue at hand, all Turkish citizens with disabilities have the right to enter public services. The second sentence which prohibits discrimination at recruitment is a very appropriate and timely regulation. It foresees only a distinction that can be made only on the requirements of the task. We cannot criticize this article as discrimination, because the aim is not to subject the disabled or others to discrimination. It must be admitted that most tasks/jobs require certain qualifications. It is normal to prefer certain people with specific qualities for a specific task. What is important for us is the non-discrimination based on disabilities when the disabled and non-disabled with the same qualities apply for the same job. This discrimination is prevented by the principle of equality stipulated by the Constitution and other legislation. b. The Civil Servants Law No. 657 and the Entrance of the Disabled to Civil Service According to Article 53 of the Civil Servants Law No. 657: The institutions must employ 3% disabled staff of the staff they employ in accordance with this Act. In the calculation of 3%, the total number of full staff of the concerned institutions or organizations (excluding international organizations) is taken into account. Exams for people with disabilities are performed centrally by preparing the exam questions and ensure their accessibility based on their disability groups

and education status as long as there is disabled quota as separate from the exam for those to be appointed as civil servants for the first time. State Personnel Department is responsible for the follow-up and supervision of the fulfilment of the obligation to employ disabled staff in the civil service. The public institutions and organizations having disabled quota shall notify the State Personnel Department regarding their demand for the disabled to be recruited next year until the end of October of each year. State Personnel Department can make placements on the disabled quota upon the notification of the institutions. The regulation to be prepared by the State Personnel Department after taking the opinion of the Administration for Disabled People regulate the conditions for the disabled to be civil servants, the central examinations and placements, the placement by lottery procedure according to education status and disability groups, which aids will be provided by the institutions in the execution of the duties of the disabled, procedures and principles regarding the notification of statistical data by public institutions and organizations for the disabled staffing and other aspects. The Law on Civil Servants, by introducing a mandatory provision, holds it compulsory for public institutions to have at least 3% of the employees subject to the Civil Servants Law No. 657 as the disabled. The Article made an appropriate regulation and makes it easier for the disabled to be civil servants. However, it is considered that the rate of disability in society is 12.29% (Turkey Statistical Institute data for 2002), 3% remains at a slightly lower level. This rate of 12.29% is valid for all age groups, and in fact, the age to enter civil servant positions covers most the age group 20-29, while the number of disabled persons in this age group is 7.30 % (Turkey Statistical Institute 2002 data). The decline of the rate is a positive situation for people with disabilities but still an increase of 3% will provide more convenience in terms of the disabled becoming civil servants. The recruitment of the disabled into civil service is made with a separate central exam centre for the disabled as regulated in the following paragraphs. However, this practice is not mandatory. It is an opportunity granted to the disabled. A disabled person can apply any exam carried out for the recruitment of civil servants or 75

contracted personnel to the public institutions and organizations just as any non-disabled candidate. Therefore, any willing disabled can take up the KPSS (Public Personnel Selection Examination) which is open to anyone and is not specific for the disabled. The EKPSS exam for the disabled is to turn disadvantaged situation of the people with disabilities to their advantage if they want. If the disability of the person does not hinder him from performing the examinations, he may enter the regular exams. If he wants to pass a test process in a more comfortable way or if the normal test conditions are to cause him difficulties owing to his disability, then the disabled candidate may choose the EKPSS exam. c. Disabled Public Personnel Selection Examination (EKPSS) for the Disabled and the Recruitment of the Disabled to the Office The exam procedure of the EKPSS exam for the disabled is regulated in detail in the Regulation on Disabled Public Personnel Selection Examination and Recruitment to the State Office. This regulation holds the principles and procedures relating to other matters related to disabled civil servant recruitment, provision of statistical information, monitor and control of disabled civil servants, centrally held Disabled Public Personnel Selection Examination, lottery and the placement process (Article 1/(1)). Pursuant to Article 13/(1) of the Regulation, â&#x20AC;&#x153;the placement of disabled candidates to the civil servant positions is established with EKPSS results and placement results of the lotâ&#x20AC;? are used. EKPSS and drawing of lots methods are defined in Article 53 of the Civil Servants Law No. 657. According to this, the following are expressed: The institutions must employ 3% disabled staff of the staff they employ in accordance with this Act. In the calculation of 3%, the total number of full staff of the concerned institutions or organizations (excluding international organizations) is taken into account. Exams for people with disabilities are performed centrally by preparing the exam questions and ensure their accessibility based on their disability groups and education 76

status as long as there is disabled quota as separate from the exam for those to be appointed as civil servants for the first time. State Personnel Department is responsible for the follow-up and supervision of the fulfilment of the obligation to employ disabled staff in the civil service. The public institutions and organizations having disabled quota shall notify the State Personnel Department regarding their demand for the disabled to be recruited next year until the end of October of each year. State Personnel Department can make placements on the disabled quota upon the notification of the institutions. The regulation to be prepared by the State Personnel Department after taking the opinion of the Administration for Disabled People regulate the conditions for the disabled to be civil servants, the central examinations and placements, the placement by lottery procedure according to education status and disability groups, which aids will be provided by the institutions in the execution of the duties of the disabled, procedures and principles regarding the notification of statistical data by public institutions and organizations for the disabled staffing and other aspects.

The Law on Civil Servants, by introducing a mandatory provision, holds it compulsory for public institutions to have at least 3% of the employees subject to the Civil Servants Law No. 657 as the disabled. The Article made an appropriate regulation and makes it easier for the disabled to be civil servants. However, it is considered that the rate of disability in society is 12.29% (Turkey Statistical Institute data for 2002), 3% remains at a slightly lower level. This rate of 12.29% is valid for all age groups, and in fact, the age to enter civil servant positions covers most the age group 20-29, while the number of disabled persons in this age group is 7.30 % (Turkey Statistical Institute 2002 data). The decline of the rate is a positive situation for people with disabilities but still an increase of 3% will provide more convenience in terms of the disabled becoming civil servants.

d. Various Provisions which Facilitate the Disabled Regarding Civil Services The Law on Civil Servants No. 657 includes various regulations which facilitate the work life of the disabled. These can be classified as appointment leaves, working hours and facilitations regarding the resumption of work. The Law on Civil Servants No. 657 as well as the other laws and regulations provide opportunities and rights for the disabled in our legal system. In some cases, depending on the administrative situation, the administrative decision might carry out advantageous practices for the disabled. There are also various modes of help as left to the discretion of administrative authorities. i. Privileges Provided With The Right to Appointment Article 72 of the Law on Civil Servants No. 657:

According to the report to be issued in accordance with the related legislation, regulations are made to meet the requests to change the locations of the civil servants who are themselves disabled or whose spouse or the family members under his responsibility who have first degree blood lineage relationship are disabled.

If the person to be appointed is the disabled himself, this article provides a direct advantage to him. If the disabled person is the spouse or first degree relative, this article facilitates the appointment process of the person and provides an indirect benefit for the disabled. It is appropriate that the article is prepared comprehensively, because regulations directly regarding the disabled are not always sufficient. Some of the disabled may need their spouses or relatives. This does not mean dependency. What is aimed in the article is to facilitate their daily life. Additional Article 39 of the Law on Civil Servants No. 657:

If the special education assessment council documents that the disabled spouses, children and siblings of the civil servants reported by the Medical Board report at any level in which they cannot lead their lives without the help

or care of somebody else shall receive education and training in the official or private education institutions out of the location of the duty, upon the request of the relevant person, the civil servant is appointed to a suitable empty position which is close to the province or district where the education institution is located. The article guarantees the advantages provided to the disabled in terms of his continuation to special education. If the civil servant has a disabled spouse, child or sibling, he can request his appointment to a location with special education institutions to ensure that education is granted to these people. That article is an appropriate arrangement and aims at not depriving the disabled who need special education from education, and provides the right to appointment to the spouses, parents or siblings to ensure this. ii. Rights on Working Hours The Law on Civil Servants No. 657 article 100: The start and ending hours of the work and lunch break are determined by the Council of Ministers under request of the State Personnel Directorate in the centre based on the qualities of the regions and the services, and by the mayors in the provinces. However, for the disabled, the start and ending hours of the work as well as the lunch break might be determined in a different way by the top executive in the centre and by the chief officers in the countryside considering the disability, the requirements of the task and the conditions of climate and transport. This article provides that their working hours can be specially adjusted to disabled civil servants. It is an appropriate regulation and provides many opportunities especially in terms of the climate. The goal of determining working hours is to provide general order and discipline. Flexibility in working hours in some cases does not cause hindrance to the work and even provides a positive impact by ensuring that the employee is comfortable as his concerns are eliminated. It is possible for a disabled civil servant whose house is located far to come to work and leave work later 79

than other employees. It might be possible to change their working hours for a few days, weeks or months for the disabled due to, for instance, intense snow and rain fall. The Law on Civil Servants No. 657 Article 101: The disabled civil servants are not assigned with the duty of night shift or night watch out of their request. This article brings some regulations regarding night work. It states that the disabled civil servant cannot be employed in night shift or night watch. iii. Special Arrangements on Leaves Law on Civil Servants No. 657 Article 104/ E: If the disabled or chronically ill child (disabled at the rate of at least 70 percent) of a civil servant gets sick (if that child is married, his spouse should be at least 70 percent disabled as well), based on the medical report and as long as used by only one of the parents, compassionate leave of up to 10 day can be granted within a year partially or all together. The arrangement guarantees the right to leave to people with disabled or chronically ill relatives for ten days to be granted in case the disabled person gets sick. iv. The Right to Resume The Work Law on Civil Servants no 657 Article 189: Among civil servants who receive disabled income, those whose workforce is expected to increase can be prepared for work to ensure that they are able to work in their profession in their former position or in a new position or category. The article makes it possible for disabled civil servants who have had to quit their duty, in order to receive disabled income, to start working again. It is an appropriate regulation and provides a new opportunity for the disabled who finds the power to work again.

II. LEGAL REGULATIONS IN UNITED KINGDOM LAW The Disabled Persons (Employment) Act which entered into force in 1944 in the United Kingdom relates to the employment of disabled individuals and was implemented in order to ensure those who became disabled in the Second World War were able to find jobs. This Act prescribes the duty to recruit 3% registered disabled individuals to employers who employ twenty or more workers. Employers who fall within the scope of the act in question are expected to prioritize registered disabled applicants in the recruitment process. Although the public sector falls out of the scope of the Act, with the general agreement for the implementation of the same provisions in the public sphere, the disability quota has been applied in the public sector, as well. As a result of this, there is a better outlook on employment of the disabled in the public sector compared to the private sector. (United Kingdom Report § 2.2) Although the precautions such as the quota system in the United Kingdom were taken with good intentions in order to ensure proportionate representation in the workplace, they have not succeed in eliminating the obstacles against disabled individuals. The absence of an executory procedure is one of the causes of this inefficacy. For instance, following investigations commenced between 1949 and 1975, only six employers were penalized and fined £284 in total due to the violation of the quota system. Other problems have resulted from the absence of knowledge and awareness; the fact that the disabled do not know the procedure of registering in the system or thought that this would not help them find a job led to the limitation of the application. As a result, filling the rate of the mandatory quota of 3% has reduced more and more each year. While the disability quota was 61.4% full in 1961, this rate fell to 41.8% in 1971 and to 33.6% in 1981 and finally to 20.4% in 1991 (The United Kingdom Report § 3). The government’s intention to abolish the quota system from the mid-1970s is no secret. However, the legal regulation on the subject entered into force in 1995 (United Kingdom Report § 2.3). During this time, the request of the quota supporters to take heavier measures regarding the application led to the implementation of short term programs. The Fit for Work program at the end of the 90s provided only a small portion of development in disabled employment; however, it resulted in an important impact in the government front. The importance of the program in question was that it focused on 81

what the disabled individuals could do, not what they could not (The United Kingdom Report ยง 3). The government policies in the mid-90s were inclined towards increasing individual and enterprise freedom, avoiding interference with the market, keeping the private entrepreneurship cost at the minimum and reducing public services. As a result of these policies, the Disability Discrimination Act was implemented prioritising reducing the cost of the quota system (The United Kingdom Report ยง 3). The Disability Discrimination Act of 1995 was evaluated as pioneering regulation, and was based on the existing institutions and discrimination based on gender and race. The legislation acted in order to improve the skills of disabled individuals and to prepare them for working life. The scope of this Act was limited to employers who recruited at least twenty workers. Employers within the scope of the Act were imposed the duty to take reasonable steps to ease the employment of the disabled in terms of working conditions and working environment. The important amendments in 2005 of this Act excluded small enterprises from the scope of the Act and enterprises at this scale consisted of 95% of all the entire enterprises in the United Kingdom. On the other hand, as a result of the amendments, the scope of the protection was expanded for the access of disabled individuals to public services (The United Kingdom Report ยง 2.3). An important criticism of the Disability Discrimination Act was the absence of an active and efficient implementation mechanism (The United Kingdom Report ยง 3). The Equality Act which entered into force on 1 October 2010 is a comprehensive statute regarding discrimination which terminated the Disability Discrimination Act and was issued following the legal regulations regarding gender discrimination (1975), racial discrimination (1976), discrimination based on sexual orientation (2003), discrimination based on religious beliefs (2003) and discrimination based on age (2006) which came into force as the requirements of the EU law in the historical process. This law includes comprehensive regulations covering these discrimination bases. The regulations based on disability are based generally on the Disability Discrimination Act and are therefore criticized, yet they have important differences 59 59 For

the differences about the disability term see the First Section above.

(The United Kingdom Report § 2.4; 3). The intention of the law is to protect individuals from unfair treatment and to create a simple, modern and obstacle-free framework for a much more equal society (The United Kingdom Report § 3). The basis of disabled rights in the United Kingdom law is reasonable adjustment. Reasonable adjustment is applied to disabled workers and no measures are taken for caretakers of the disabled employee, or for workers in connection with that employee. For instance, there is no obligation to fix flashing warning lamps in case of fire for the caretaker who has a hearing impairment looking after the wheelchair using employee. In order to force the employer for reasonable adjustment, it should be proven that the disabled employee has an important disadvantage when the adjustment in question is not made. Factors such as cost and effectiveness cannot be accepted indetermining which adjustment is reasonable and the employer cannot use these factors in his defence for not making the arrangements in question. Reasonable adjustment includes the adaptation of the workplace and work equipment as well as the change of applications in the workplace and definition of work (The United Kingdom Report § 2.5). In a case brought before the court, there was a serious reduction in the movement ability of a garbage man because of falling while working. As a result, the employer wanted to make reasonable adjustments by suggesting an office work, yet he could not do it as the office work required high qualifications. The court decided that the employer nevertheless had to offer an office position although it requires high qualifications. The decision in question was criticized stating that a favourable treatment cannot be automatically implemented in the United Kingdom law and the individuals having the disadvantage shall be privileged when compared to other workers with similar qualifications (The United Kingdom Report § 2.5). There is no rule stating that the disabled employee is obliged to inform/reveal their condition to their employer (The United Kingdom Report § 2.7). The disabled in the United Kingdom are supported with many projects aimed at the improvement of the works and capabilities by the European Social Fund (The United Kingdom Report § 2.9). 83

The job placement of disabled individuals in the United Kingdom is undertaken largely by Jobcentre Plus and Work Programme providers. Thus, the programs undertaken by the government in accordance with the Disabled Persons Employment Act of 1944 are as follows: - Disability Advisory Service: It is within the authorities known as employment agencies. It was reorganized in 1992 as Placing, Assessment and Counseling Teams which cooperate with disabled applicants and employers. The purpose of the 90â&#x20AC;&#x2122;s was to bring in as effective and accessible arrangements as possible for the disabled. Currently, integrated mainstream services have been used for the majority of the disabled individuals who receive employment services. The Disability Employment Advisers as well as the Placing, Assessment and Counselling Teams provide services to individuals who need additional support under the complimentary services (United Kingdom Report Â§ 4.1). - New Deal for Disabled People: The Labour Party government which came to power in 1997 brought along some welfare increasing reforms called New Deal and Welfare to Work which regulate the active interferences for the employment market. Advocates of disabled rights have criticized this program for its limitation and the lack of financial resources for the aid to be provided to both the disabled and employers. NDDP encountered criticisms due to the fact that the resources were seriously inadequate for more than one quarter million unemployed disabled in the report published by the Work and Pensions Committee in 2003 (The United Kingdom Report Â§ 4.2). - Work Program & Universal Credit: The work program activated by the existing government in 2011 has become the basic policy maker of the welfare reform in the United Kingdom along with the universal credit. The program was designed to modernize some government programs and to support the individual needs of the unemployed. The program received criticisms and was questioned in terms of ethics. The criticisms towards the program include the fact that the participants have to work for free to benefit from the program and the payment system is problematic. The universal credit system has been an application which limits the expenditures of the government for welfare prioritizing the fundamental economics, yet increases

access to employment. Due to the negative criticism against welfare programs, the government was mobilized and took a series of measurements. Although one of these was to increase the budget of optional residence payments (DHP), the criticisms of the groups advocating disabled rights could not be stopped due to the insufficiency of the resources and the protection of the disabled. In the mentioned Guardian report (19/12/13), it is pointed out that one third of the disabled applying for the DHP has been rejected (The United Kingdom Report ยง 4.3). - Work Capability Assessment or Fit for Work Test: Work Capability Assessment (WCA) or with its common name Fit for Work Test is a test performed by the Department for Work and Pensions (DWP) used for determining whether the disabled are entitled to receive employment and support aid (ESA). This assessment consists of the personal assessment of the quality and the medical examination of an authorized doctor for some requesters. The personal evaluation is made in accordance with the results of a questionnaire to be responded by the person himself that is based on a grading system. The test was put into effect in the previous Workers Party period in 2007. The existing government expanded the implementation area of WCA in 2011. Richard Hawkes (the President of the Executive Board of SCOPE) stated that although the program is correct in principle in order to reduce the gap in employment for the disabled, its strategy and timing is wrong in his criticism published in Guardian in 2011. Not only disabled rights advocates, but also inspection and supervision authorities of the British government criticized WCA (The United Kingdom Report ยง 4.4). -Disability Working Allowance: One of the important developments in the disabled employment policy is the Disability Working Allowance that came into effect in April 1992. Aiming at increasing the gains of the disabled workers, this application intended to increase the low wages and was related to the disability allowance and disability discounts. When the application entered into force, it led to the development of a belief suggesting that the development of the incentives would increase the share in the economic functionality. DWA was replaced by the Working Family Tax Credits in 1999 (The United Kingdom Report ยง 4.5). 85

-Employment Rehabilitation Centers: Established in 1943, the number of the employment rehabilitation centres reached 27 in 1978. Having been criticized for focusing on the professional conditions of the workers having low skill levels based on hand work, the centres were completely closed down by the end of 1992 (The United Kingdom Report § 4.6). -Supported Employment: It was implemented in order to ensure the people having heavy disabilities to fulfill their employment needs and to ensure their social and economic participation as well as ensuring them to work at real jobs. The supported employment aims at the following outcomes: • Real professions in which a fair income can be obtained and other benefits related to employment can be received. • The development of new skills. • Social and economic participation. • Supporting the ability to decide on one’s own fate, making choices and independence. • Developed self-respect. • The increasing life quality as a result of fair and respectful treatment. The program aimed at showing that everybody can work at the right profession and with the right support. The people above 14 years of age are entitled to benefit from supported employment. The purpose is to ensure problem-free and smooth transfer from training to employment (The United Kingdom Report § 4.7). -Sheltered Employment: The basic purpose of the sheltered employment is to improve the lives of the disabled by creating real profession opportunities. Sheltered employment is undertaken by Remploy in the United Kingdom. Remploy was established in 1945 to take care of the former soldiers. Offering services at 64 centres right now, Remploy was shaped around the belief that everybody has something to offer. With this perspective, Remploy has undertaken the duty of matching the carefully selected employers with the disabled workers at the professions in accordance with their powers. 86

The goal of Remploy is to prepare people for work and find jobs for them in the long term in a well-equipped manner with support and advice rather than undertaking a short-term role while building their carriers. Working with 2,500 employers currently, including both global companies and small scale enterprises, Remploy has provided employment to 100.000 people since 2010. After seventy years following its establishment, Remploy was released from the ownership of the state and entered into a joint venture relation on 7 April 2015 with MAXIMUS which is an international company offering health and employment services in three continents (The United Kingdom Report § 4.8). -Access to Work: Access to Work is an expert disability service provided by Jobcentre Plus. It is offering services as practical advices and support to the disabled. The advices and support are offered to all clients who are carrying out their own business or seeking jobs. The reasonable adjustment activities which are mandatory for the employers in accordance with the Equality Act are also under the service limit of Access to Work. Individuals should satisfy the following criteria to benefit from Access to Work: • have any disability or health condition that has had serious effects on the working ability for a long term. • be older than sixteen. • be living and working in the United Kingdom under normal circumstances. • be working at a paid job or to be about to start such a job (including the independent workers). • have not requested any other Department of Work and Pensions Incapacity Benefit or Employment Support Allowance. Some of the support provided by Access to Work is as follows: • Special support or device or modifications, • Traveling, • Communication support for interviews (such as for hearing impaired) and • The support personnel for mental health.

Access to Work meets 100% of the cost of the workers who work at their own business, perform freelance professions and workers who recently started work (less than six weeks). It meets 20% of the cost of the employers for the other workers. Access to Work has been evaluated as a successful policy and application for the physically or mentally disabled. However, the only criticism towards Access to Work has been its distance to the public. Employers are informed of the support by Access to Work from second hand sources (The United Kingdom Report § 4.9). - Work Choice: This special employment program created in October 2010 for the disabled who need more assistance in terms of employment has been implemented with an agreement by Remploy on behalf of DWP. The program depends on the principle of volunteering and provides the following services: • Assistance in job seeking and placement. • Assistance for the continuation at work. • Assistance for those who want to be self-employed. Work Choice has been well received in some areas, yet some disabled rights advocates such as the Disability Rights UK criticized the program for being inadequate in terms of resources and having goals far from success (The United Kingdom Report § 4.10). - Residential Training Colleges: Residential training colleges offer expert disabled employment training to those who suffer from serious health conditions/incapabilities in terms of working. RTC service providers are independent organizations and are not under the direct control of the state. They have the freedom of implementing their activities without consulting the state. The training takes 4 to 5 weeks on average although it changes depending on the type of the education and has a wide range including massaging, forklift operation, carpenter training, and accounting. It has been evaluated as a method that has being much more successful than other programs (The United Kingdom Report § 4.11). - Self-Employment: The self-employment of the disabled is important, because they can work much more comfortably and flexibly in this way. The Employment Department in the UK has assessed this practice as an important part of the policy for

the disabled.. Assistance and adaptations for self-employment has been performed with Access to Work model (The United Kingdom Report § 4.12). - The British Association for Supported Employment: It is a national trade union and comprises of hundreds of agencies which provide employment assurance for the disabled. They support supported employment and focus on informing the individuals and increasing consciousness. The purpose is not employment after training, yet issuing employment and training, which means the participants obtain a profession from the very beginning (The United Kingdom Report § 4.13). -Disability Rights UK: It came into implementation with the merge of the Disability Alliance, RADAR and National Centre for Independent Living in January 2012. Its purpose is to become a national union by strengthening the voice of the disabled. Their struggle area is as follows: • Ensuring independent living. • To eliminate the connection between disability and poverty. • To implement the human rights in the social dimension with disabled equality. III. LEGAL REGULATIONS IN ROMANIAN LAW According to the information obtained from the Romanian National Report, that legislation on the disabled in Romanian law is dispersed and heterogeneous. There have been many laws, government decisions, government emergency ordinances on the issue and some of them have been abolished or amended. However, the aim has been to make the national legislation in compliance with the European Union and the international law. The 2006-2013 national strategy ratified with the government’s decision numbered 1175/2005 includes planning and implementation regarding social protection for disability. The basis of the strategy in question is the capability of the disabled individuals to make choices as active citizens and to control their own lives. 60

While the 2014-2020 National Strategy expresses that the steps started with the previous strategy should be maintained

and improved, while it is stated that the Romanian National Report was a draft during the preparation and was not ratified at the national level.

The Law Numbered 448 which entered into force on 3 January 2008 and then underwent important amendments have been protecting disabled individuals. The rights of disabled individuals in this law includes working, the adaptation of the workplace, professional orientation and reorganization, while the protection and support of disabled individual rights have been based on the equal treatment principle in the employment of the labour.

The level of disability in Romanian law has been determined with the joined Bylaw No. 762 / 1992 of the Ministry of Labour, Family and Equal Opportunities and the Ministry of Public Health and this bylaw accepts the medical and psychosocial criteria. The disability level of adults is determined by the Regional Adult Disabled Individuals Assessment Committee in accordance with the provisions of the government decision No. 430 / 2008.

Romanian law accepts the quota system for disabled employment, yet there has been differentiating arrangements when compared to the classic quota system in terms of giving the employer authority to choose. In Romania, employers either can recruit disabled individuals within the scope of the quota or can fulfill their social duty by implementing one of the other methods prescribed in the law. According to the law, employers can: i. Recruit disabled workers at the percentage of 4% of the total workforce if they have more than fifty employees. ii. Or pay the amount which corresponds to 50% of the monthly minimum gross pay for each disabled individual that they do not hire under the quota system to the state budget. iii. Purchase product or services from the authorized protected units.

The quota system requires the employer to hire disabled workers at a certain rate compared to the total number of workers. Most of the public and private sector employers are within the scope of the application, big companies and institutions under particular focus. It has been reported that employers have been exposed to financial sanctions for not fulfilling their obligation; and increasing resources have been used in professional rehabilitation or social professional integration of the disabled. 90

It should be noted that the highest sanction prescribed by the Law No. 448 is the violation of the quota system and the public or private legal person in question is fined to pay 15.000â&#x20AC;&#x201C; 20.000 Romanian leis. However, the Romanian National Report expresses that this sanction is not an effective measurement, contrary to what appears. Similarly, when the employer chooses one of the other two social duties in place of the quota, this sanction cannot be implemented. The quota system in Romania was first regulated by the Law No. 57/1992. According to this, employers who recruited more than 250 workers were obliged to recruit at least 3% disabled individuals when compared to the total number of workers under the quota. Employers who contravened this obligation were obliged to pay the amount which is the multiplication of the number of the disabled that they do not hire with the minimum gross wage as a sanction. The implementation area has been expanded overtime with the amendments on the law and the workplaces under the quota were first regulated as the workplaces in which more than a hundred workers work, then the application area expanded to the enterprises hiring more than fifty workers. At the same time, the disabled quota rate was increased to 4% and the material correspondence prescribed instead of the quota has been reduced. In addition, purchasing goods and/or services from the authorized protected units according to the law in force is another opportunity for the employer that can be consulted instead of hiring the disabled. While fine for the contradiction with the quote obligation was transferred to a special fund which was used in the financing of the various assistance programs for the disabled individuals, now it is directly transferred to the state budget. The Romanian National Report expresses that the quota system is weakly implemented and does not create a reasonable employment rate for disabled individuals. Although the fines were qualified as new taxes which would bring in new resources for the budget in this context, since the fines are paid to the general budget, it has been criticized for not being clear in terms of specifying how much of these are used for the integration of the disabled individuals to the work life. The entire process starting with the incident which renders the individual disabled, to his inclusion to society and start at a possible new job in Romanian law is shown in the table below (Romanian Report, Table 4). 91

According to the Work Code approved by the Law No. 53/2003, all kinds of direct and indirect discrimination against the worker based on disability have been prohibited. The discrimination based on disability while determining the wage is also prohibited. According to the government ordinance number 68/2003, the disabled individuals benefits from the following: A. Recovery and rehabilitation, B. Support and assistance to him and his family, C. Support and assistance in integration, reduction and professional retraining, D. Social and medical care, E. Social meditation, F. Counselling, G. Personal assistance to those having heavy disabilities, H. The confirmation or improvement of the removal of her personal qualifications, the other precautions and activities for overcoming the conditions resulting from social needs. The Law No. 448 included regulations regarding reasonable adjustment of workplaces. The adjustment/adaptation is the process of turning the physical and cognitive environment in a manner that would be appropriate for the disabled as well. In this context the workplace, equipment, bathroom and access route should be appropriate at the minimum level. Officials are given a time period until 31 December 2010 to make public transportation appropriate for disabled individuals according to the Law No. 448 (Art. 64). However, it has been expressed that many of the public institutions and organizations that offer services to the public still have no ramps and therefore, are not accessible for the disabled as well as the elderly and mothers using baby carts according to the Romanian National Report. The Romanian National Report points out that the implementation differs although the legislation includes the protective and improving regulations for the disabled rights. In many cases, the violation of the legislation in force, most frequently the absence of the transportation means, is a cause of suffering for public institutions and organizations due to insufficiency of resources. The Law No. 448 prescribes a fine of 6.000 â&#x20AC;&#x201C; 12.000 Romanian leis when the social support right is violated under the social services, when the social services provider does not fulfil its duty, and when the public authority does not fulfil its duty of taking 93

special precautions for the physical, cognitive and communicational access of the disabled individuals to the environment. Employers may receive grants from the state for disabled employment. If the employer recruits the disabled for at least 2 years although he does not have any legal obligation to employ disabled individuals, the employer receives the minimum monthly wage for one year for each disabled worker (The Law No. 76 / 2002). In addition, an employer who hires a disabled graduate with an employment contract for an unlimited period benefits from tax exemption for 1,5 years in terms of the unemployment insurance. The amount varies according to the education level and corresponds to 1 or 1,5 gross minimum wage. The authority responsible from the professional integration of the disabled individuals in Romania are the Ministry of Labour, Family, Social Aid and Elderly and the National Employment Agency and is performed by the National Administration for the Disabled Individuals. IV. EVALUATIONS The subject of the examination of the disabled legislation is disperse and complicated in all three countries and regulations regarding the employment right of the disabled exist in different legal texts. In addition, the legislation has been subject to important amendments. The dynamic nature of the concept of disability, its changing nature according to location, time and society and the fact that the subject is a developing discipline and human rights problem has made this consequence inevitable. There has been a similar development course in the United Kingdom, Romanian and Turkish laws. The quota system is an important method used in the employment of the disabled in Romania and Turkish law despite being abandoned in the United Kingdom law. In Turkish law, the requirement for employers with a workforce of 50 or more employees to hire disabled workers is 3% for the private sector workplaces and 4% for public workplaces. This quota is 4% in the Romanian law regardless of the distinction between the public and private sectors as long as there are more than fifty workers. An important issue that distinguishes the Romanian law from the Turkish is 94

that employers are provided two other options by law instead of the quota system to fulfil their social duty either by paying a certain amount or purchasing goods and services from certain protected places and are not exposed to any sanctions despite not hiring any disabled.

The quota system in Romanian law is weakly applied and has been criticized for not creating a reasonable employment rate. Prescribing more deterrent and higher sanctions, the Turkish quota system created 78% disabled employment according to 2014 data and this rate can be accepted successful. However, when the curtain is opened, it is seen that the employers willing to avoid high fines register the disabled as insured although they are not employed in person actively; there are disabled people who do not get any payment but just accepts to be insured and the ones who (can) go to work but are exposed to discriminatory practices.

Criticisms saying that the quota practices prove the disabled people “inadequate” and “unsuccessful” in the eyes of other individuals, or strengthen this perception are quite justified.

As a general assessment, it is difficult to contend that the quota system is a productive instrument in the inclusion of the disabled in social life.

Although the quota system is regulated as an obligation in Turkish law, it should be noted that the implementation rests on the will of the employer. When the quota requirement was introduced in 1944 in United Kingdom law, although the scope covered only private sector employers, the fact that the scope was expanded to the public sector employers with a general agreement and was better implemented by the employers proves that the approach of the employers to the practice has an important role in the success of the practice.

We suggest the formation of a system that offers other methods to the employer, like the Romanian law, instead of regulations forcing the employers. It is important to change the approach to disabled workers and include them in work life as active individuals; thus to ensure the support of the employers for their integration to the society; along with that, to strengthen the educational and professional levels of the disabled. 95

Since the fines collected in case of the violation of the quota in the Romanian law are paid to the general budget, the issue as to how much of this is used for the integration of the disabled to the work life has been criticized. In Turkey, on the other hand, using the collected administrative fines for the job placement of the disabled or support of other related projects has been a positive development. The project support in question is important for the disabled to participate more and actively in work life and to become not only employees, but also employers or entrepreneurs; however, the condition that the enterprise established under the projects ensuring the disabled to establish their own enterprise have to operate actively for at least 2 years from their foundation and the fact that the payment as foundation support shall be returned including the legal interest where the contrary is detected is conducive to creating troublesome results. In our opinion, supporting the disabled entrepreneurs only financially is not enough, and the continuation of the support of Turkish Employment Agency is important and necessary for the implementation of the project. Otherwise, the disabled who do not have any professional experience might be injured, not supported. Despite the incentives given in Turkish law regarding sheltered workshops, the practice remained limited. Establishing sheltered workshops under the control of the employers has been made difficult by being subjected to strict conditions in the legislation. The sheltered workshops aim at the employment of the individuals within a certain disability group (mentally or psychologically disabled). However, it is not possible to ensure the inclusion of these individuals in the social life this way. On the contrary, sheltered workshops might isolate these individuals. The antidiscrimination legislation that is actively applied in the United Kingdom law for the disabled is a guiding one. The intention of the Equality Act which entered into force on October 1, 2010 is to protect the individuals from unfair treatment and to create a simple, modern and obstacle free framework for a much more equal society. In this context, reasonable adjustment is a fundamental assurance in the disabled law. Reasonable adjustment is regulated by the Law No. 5378 in the Turkish law. Factors like cost and effectiveness are not considered determinant in determining whether an adjustment is reasonable or not in the United Kingdom. It is important to reject the employers who use these for defending their failure to make the adjustments in 96

question. As clearly seen in the Enver Şahin-Fırat University case

given in the Turkish

National Report, the avoidance of the institutions and organizations as well as the employers from making the necessary adjustments due to the cost and the judiciary decisions approving of this have been injured in Turkey.

Here, we again suggest a system where the social factors are considered and the rates of “working capability levels” and “income capability at a profession” are calculated instead of the negative reports and medical assessment saying that the disabled individuals “cannot work”, “cannot perform a job” with expressions such as “income

According to the explanations regarding the case in the report; “Enver Şahin became paralyzed following a traffic

accident in 2005 and had to pause his studies for 2 years. Later on, when he wanted to continue his education, he requested the problem of accessibility to be solved, since the physical condition of the university building was not suitable. However, the faculty in which 3000 students study stated through the related administration that it is not possible to change the architectural projects of the classrooms and laboratory building and it is not possible to build the arrangements such as ramps requested at the entrance level of the building and the applicant has to actively participate in the applications which consist of applied workshops in majority, and there are difficulties in ensuring his participation to the application due to the missing arrangements, however, the faculty shall help as long as its capabilities allow. Although the university thought a solution would be provided by this reply, when it is understood that the problem could not be eliminated in the inspection carried out shortly before the education period, this time a written warning was sent. As a response to the letter, the administration sent the following letter: “It is obvious that making the arrangements takes some time within their public financial discipline. Building in which the theoretical classes are given has three stories, and the problems encountered will be solved by assigning an assisting personnel.” As seen in this problem, the failure to build the ramp which is almost of no cost and to see the education of the disabled person not as an obligation but as the cost is a problem of the mentality. Despite the legal arrangements, it is seen that it will take longer to solve the problem unless the practitioners change their mentality. The file suit against the institution due to depriving Enver Şahin from his right to education was concluded in favour of the disabled. The decision of the Elazığ local court (Elazığ 1st Administrative Court, Principle No.2007/2499 and Decision No. 2010/355) is as follows: “In the suit filed due to the absence of disabled people in the building where the individual receives education and yet his right to education was prevented hindered, no illegality was found in the responses received. Moreover, the material compensation request was rejected by the court on the grounds that when the individual graduates he will make an income and his active stated income has not started and is dependent on assumptions.”

power loss at the profession” and “working capability loss” based on the United Kingdom law. It should be noted that the negative expressions serve strengthening the negative perception and thus, the exclusion of the disabled from social life. What is learnt from the comparative law proved that the legal regulations and projects implemented to ease the work life of the disabled in three countries could generally not give the expected result. It is important to approach the issue as a human rights problem and a subject of the disabled people’s right to work. There are a lot of and various things to do in this developing human rights branch.

REFERENCES 62

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DECISIONS

CONSTITUTIONAL COURT (1981) Basis 1981/13, Decision 1983/8, Date 28/4/1983 CONSTITUTIONAL COURT (1986) Basis 1986/11, Decision 1986/26, Date 4/11/1986. CONSTITUTIONAL COURT (1989) Basis 1989/6, Decision 1989/42, Date 7/11/1989. CONSTITUTIONAL COURT (2003) Basis 2001/375, Decision 2003/61, Date 11/6/2003. CONSTITUTIONAL COURT (2008) Basis 2006/101, Decision 2008/126, Date 19/06/2008. CONSTITUTIONAL COURT (2011) Basis 2009/47, Decision 2011/51, Date 17/3/2011. CONSTITUTIONAL COURT (2012) Basis 2012/102, Decision 2012/207, Date 27/12/2012. CONSTITUTIONAL COURT (2013a) Onurhan Solmaz Decision, Application No: 2012/1049, 26/3/2013. CONSTITUTIONAL COURT (2013b), Cemil Danışman Decision, Application No: 2012/1017, 18/9/2013. CONSTITUTIONAL COURT (2013c) Sevim Akat Eşki Decision, Application No: 2013/2187, 19/12/2013. CONSTITUTIONAL COURT (2014) Tuğba Arslan Decision, Application No: 2014/256, 25/6/2014. CRPD (2010) Liliane Gröninger v. Germany, CRPD/C/D/2/2010. CRPD (2011) KennethMcAlpine v. UK, CRPD/C/8/D/6/2011. CRPD (2012) Report of the fifth session of the Conference of States Parties to the Convention on the Rights of Persons with Disabilities, CRPD/CSP/2012/2. ECJ (2008) S. Coleman v. AttridgeLawand Steve Law, C-303/06, 17/7/2008. Istanbul 6. Administrative Court 2003/71 Basis and 2004/397 Decision number 18.03.2004 dated decision Istanbul 1. Administrative Court 2002/438 Basis and 2003/162 Decision number 20.02.2003 dated decision

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Elazığ 1. Administrative Court 2007/2499 Basis and 2010/355 Decision number decision http://tinyurl.com/llvpdgf http://www2.tbmm.gov.tr/d24/7/7-21559sgc.pdf

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EDITORS: RA Canan ÜNAL – Advt. Pınar Şanel

THE BACKGROUND OF THE AUTHORS AND EDITORS

Assoc. Prof. N. Münci ÇAKMAK Çakmak was born in Ankara on 19/04/1974. He completed his primary, secondary and high school education at TED Ankara College; he completed his undergraduate degree at Ankara University Faculty of Law; and his master’s and doctorate degree in Ankara University Social Sciences Institute. He still continues his duty at Gazi University Faculty of Law in the Department of Administrative Law as a lecturer. He speaks advanced English, and intermediate Japanese.

Dr. Tolga ŞİRİN Şirin was born in Izmir in 1984. He completed his undergraduate and graduate studies in law at Marmara University in 2012. He has served as a guest researcher at Birkbeck University and University of Cologne. He is a board member of the Constitutional Law Research Association and Bar Association of Turkey Human Rights Centre working group. Some of his research interests are nationalism, ECHR, ecological constitutionalism and constitutional justice.

Res. Asst. Canan ÜNAL Ünal was born in 1985 in Konya. She completed her undergraduate education at Bilkent University Faculty of Law in 2008; and Master’s degree in 2011 at Galatasaray University, and continues her doctoral degree at Marmara University. She has been working as a research assistant since 2009 at Marmara University Faculty of Law, Labour and Social Security Law Department; and has publications on the disabled, child laborers, the invalidity issue of employment contracts, psychological harassment in the workplace, and structuring of care insurances. She speaks English and German. 106

Advt. Pınar ŞANEL (Editor) Şanel was born in London. She holds law degrees from the University of Oxford, and Dokuz Eylül University in Turkey. She is currently working in commercial law in London. She is also on the Editorial Board of an international law journal and is on the Legal Committee of The Spinal Cord Paralytics Association of Turkey.

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