Öz
The employer's obligation of equal treatment has a dual appearance in labor law, within the framework of the prohibition of discrimination and the obligation of equal treatment in the narrow sense. In this study, the results of the employer's different treatment among its workers in similar situations, which are not based on discrimination, are discussed. The subject has been evaluated in the context of the Constitutional Court's application no. 2016/5824 and dated 28/12/2021, Burcu Reis. In the mentioned decision, it has been examined that although the employer made some of the female workers with small children benefit from the kindergarten opportunity that was opened in the workplace, the applicant did not benefit in a way that could not be clearly revealed. It was decided by the Constitutional Court that the labor court would retrial in order to eliminate the consequences of the violation of the prohibition of discrimination, which was found to be against the principle of equality. According to the settled case-law of the Court of Cassation, discrimination compensation, which constitutes the sanction of Article 5 of the Labor Law, is only in question for workers who are exposed to different treatment based on discrimination. However, the decision given by the Constitutional Court is of such a nature as to provide an opening for the payment of the mentioned compensation in all cases that are contrary to the employer's obligation of equal treatment. This result is of a nature that will result in favor of the worker in terms of the burden of proof on the worker who is exposed to different treatment in Article 5 of the Labor Law.