Istanbul Law Review
The Liability of the Employer to Employ Disabled EmployeeAyşe Köme Akpulat
Disabled people, having various problems with health, education, and employment, are among the disadvantaged groups. In Article 25 of the Universal Declaration of Human Rights 1948, it is explained that everyone should be protected in case of a lack of livelihood arising from disability. The United Nations Convention on the Rights of Persons with Disabilities also regulates the rights of persons with disabilities and the obligations of the contracting states. According to Article 27 of the Convention, contracting states shall secure and support, ensuring the right to work. Also, in Turkey, a large number of legal arrangements have been made for persons with disabilities. One of them is article 30 of Labour Law no. 4857. By this Article, employers are obliged to employ disabled workers in the workplace. Accordingly, employers employing fifty or more workers are obliged to employ a certain number of disabled workers in jobs suitable for their occupation, body and mental status. This number is 3 percent in private sector workplaces and 4 percent in public workplaces. The number of workers the employer is obliged to employ in this scope is calculated according to the total number of employees for those employers who have more than one workplace within the same province boundaries. This study aims to examine article 30 of the Labour Law within the framework of the relevant legislation.
İşverenin Engelli İşçi Çalıştırma YükümlülüğüAyşe Köme Akpulat
Engelliler; sağlık, eğitim ve istihdam konusunda çeşitli sorunlar yaşamakta ve bu anlamda dezavantajlı gruplar arasında yer almaktadır. 1948 tarihli İnsan Hakları Evrensel Beyannamesi’nin 25. maddesinde, herkesin engellilikten doğan geçim sıkıntısı durumunda korunması gerektiği açıklanmıştır. Birleşmiş Milletler Engelli Kişilerin Haklarına İlişkin Sözleşme’de de engellilerin hakları ve taraf devletlerin yükümlülükleri düzenlenmiştir. Bu Sözleşmenin 27. maddesine göre, taraf devletler çalışma hakkının gerçekleşmesini güvence altına alacak ve destekleyeceklerdir. Türkiye’de de engellilere ilişkin çok sayıda yasal düzenleme yapılmıştır. Bunlardan biri de 4857 sayılı İş Kanunu’nun 30. maddesidir. Maddede, işverenlere işyerlerinde engelli işçi çalıştırma yükümlülüğü getirilmiştir. Buna göre, elli veya daha fazla sayıda işçi çalıştıran işverenler, belirli sayıdaki engelli işçiyi meslek, beden ve ruhi durumlarına uygun işlerde çalıştırmakla yükümlüdür. Bu sayı özel sektör işyerlerinde yüzde üç, kamu işyerlerinde ise yüzde dörttür. Aynı il sınırları içinde birden fazla işyeri bulunan işverenin bu kapsamda çalıştırmakla yükümlü olduğu işçi sayısı, toplam işçi sayısına göre hesaplanır. Bu çalışma, İş Kanunu’nun 30. maddesini ilgili mevzuat çerçevesinde incelemeyi amaçlamaktadır.
Involvement of persons with disabilities in business life is extremely important – just as much as in their access to education and health services - and in their enjoyment of social protection because unemployment makes individuals becoming unemployed feel like they are useless. Involvement of persons with disabilities in business life, and pursuing the same eliminates the social effects caused by the risk of unemployment. In addition, working persons with disabilities benefit from social insurance protection based on their work, and thus a decrease occurs in the expenses made for persons with disabilities from the social security budget. While the policies relevant to persons with disabilities started with passive policies such as protecting persons with disabilities, today they have transformed into active policies such as ensuring the complete participation of persons with disabilities in employment. In Turkey, the number of persons with disabilities recorded on the National Database on Persons with Disabilities is 2.461.828 for the first half of the year 2019. And the rate of participation of persons with disabilities in employment is 22.1 percent. When compared with the data for the EU and OECD, this number is very low. Thus, increasing the participation in employment of persons with disabilities is also among the objectives relevant to business life. When the legal regulations in Turkey are examined, it can be observed that rules relevant to the protection of persons with disabilities have taken place in Constitutional Law for the first time. According to Article 17 of Constitutional Law, everyone has the right to live, and to preserve and improve their material and moral presence. And, according to Article 49 of Constitutional Law, working is everyone’s right and obligation. The government takes the required measures to increase the standard of living of employees, protect the unemployed, and support working. The government’s actualization of this obligation is especially important in terms of persons with disabilities who are experiencing many difficulties in involvement in business life. For this reason, it is required that the government should take special measures for persons with disabilities, and to provide the work environment for them. Hence, in Article 50 of Constitutional Law, it has been emphasized that no one could be employed in works not conforming to their strength, and the rule of “the ones having physical and psychological insufficiency are distinctively protected in terms of working conditions” has been established. And the most basic law regarding persons with disabilities is the Law on Persons with Disabilities no 5378. This law intends that persons with disabilities should benefit from fundamental rights and freedoms, and to ensure their participation in social life under equal conditions with other individuals. Article 30 of Labour Law no 4857 regulates the details relevant to the liability of employers to employ persons with disabilities. Article 30 was regulated again in 2008, and new principles were established regarding the employment of persons with disabilities. In accordance with this, employers employing fifty or more employees in the workplace have to employ a specific number of persons with disabilities. When Article 30 of Labour Law is examined, it is observed that the straightforward quota method has been adopted regarding the employment of persons with disabilities. The quota determined within this scope is three percent for workplaces in the private sector, and four percent for workplaces in the public sector. It is required that the following conditions are present for liability of the employer to employ persons with disabilities to arise : i) The workplace’s inclusion in the scope of Labour Law, or Maritime Labour Law, ii) Employment of fifty or more employees in the workplace. In case of the presence of these conditions, the employers are required to employ persons with disabilities whose rate of disability is at least 40 percent. Persons with disabilities should be employed through the Turkish Employment Agency. But the employer may also employ a person with disabilities through his own means. In this case, it is required to inform the Turkish Employment Agency, and to have the person with disabilities recorded at the Agency. An administrative fine is imposed on the employer acting against the liability of employing persons with disabilities. Another method regarding the employment of persons with disabilities is the concept of sheltered employment. Briefly, this method is ensuring the employment of persons with disabilities – for whom it is difficult to bring them in business life - within the frame of special conditions. In this system, there are sheltered workplaces where the working environment is specifically arranged in order to ensure the employment of persons with disabilities. In Turkish Law, the principles of this subject have been regulated in the Law on Persons with Disabilities, and in a certain regulation issued on this subject. That Regulation first came into force in 2006, and it was renewed in 2013. Persons with disabilities who will be employed at sheltered workplaces, are not only persons with physical disabilities but persons with mental and psychological disabilities. In terms of acquiring the status of a sheltered workplace, some conditions have been sought by the Regulation. Above all, it is required that the workplace is one which holds the qualifications determined by the Regulation, and where at least eight persons with disabilities are employed. In addition, the ratio of the number of persons with disabilities who will be employed at a sheltered workplace to the number of total employees shouldn’t be less than seventy five percent. In the Regulation, the physical conditions and equipment that the sheltered workplace has to have (safety, traffic safety, fire protection etc.) were also specified. A specific part of the remunerations of the persons with disabilities being employed at sheltered workplaces is paid by the government. In Turkish law, amendments made in time in Article 30 of Labour Law being the basis of the liability of employing persons with disabilities, and especially the increase in incentives for the employers in private sector are deemed as proper regulations. Again, allowing the employers to find workers who will be employed by their own means is also among those steps which would facilitate employment. Certainly, considering the measures ensuring employment as incentives rather than a quota and fine method would be a more constructive approach.