Switzerland: Employer’s obligations under the Gender Equality Act
The principle of equality between men and women is laid down in the Gender Equality Act, in particular the right to equal pay for work of equal value, and must be respected by the employer throughout the employment relationship. The Gender Equality Act applies to both private and public law employment relationships, irrespective of the form or type of employment. This article shows the obligations that the Gender Equality Act places on employers and what measures need to be taken proactively.
Prohibition of discrimination
The Gender Equality Act prohibits an employer from treating a person unequally on the basis of their gender. Discrimination can be direct, i.e. explicitly based on gender or a gender-specific criterion, or indirect, in that unequal treatment that is not gender-specific leads to discrimination against one gender. The most common form of discrimination is unequal pay. However, there are other manifestations, such as discrimination in recruitment, the allocation of tasks, the organisation of working conditions, granting education and training, and discrimination in promotion or dismissal. Unequal treatment is permitted if it is justified by an objective reason.
Measures against sexual harassment
Employers must take measures to prevent sexual harassment from occurring in their companies. In the case of sexual harassment in the workplace, the person affected has legal remedies under the Gender Equality Act against the employer – and not, as you might expect, against the person from whom the harassment originates.
Remedies of the employees
If an employee is affected by discrimination, they can take legal action to have the impending discrimination prohibited or to have an ongoing discrimination eliminated or established by the court. In addition, there is the possibility of a claim for back pay for the past five years. Finally, they can claim damages and satisfaction.
In cases of discriminatory refusal of employment or dismissal, or sexual harassment in the workplace, the employer may be required to pay compensation to the person concerned, determined according to the nature and severity of the discrimination. There is no requirement of intent or harm on the part of the employer.
If an employee has taken action against a discrimination, he or she is protected against dismissal. In the case of a revenge dismissal, the dismissal is contestable and the employee has a choice between continuing the employment relationship or receiving compensation.
Procedure and costs
Disputes under the Gender Equality Act are first dealt with by the specialised cantonal arbitration authority and then by the locally competent court. The proceedings are free of charge; the only costs incurred are the lawyers’ fees. If a party loses, it must also pay the legal fees of the counterparty.
Find out more
CELIA Alliance member Loyens & Loeff originally posted this article on their website, you can view the original article here. For more information or if you have any questions related to the content of this article please get in touch.