This summary of age discrimination law in Switzerland has been prepared by Blesi & Papa, the Ius Laboris member for Switzerland: www.blesi-papa.ch
The prohibition of age discrimination is a fundamental right guaranteed by the Swiss Federal Constitution (Article 8, paragraph 2: No person must be discriminated against due to their age). As a fundamental right, it binds the state and the authorities towards individuals. It is thus, restricted to employment relationships governed by Swiss public law (e.g. members of the civil service). It does not apply to individuals and therefore, not to employment relationships governed by Swiss private law.
Swiss private law does not provide for any particular anti-age discrimination legislation. Pursuant to the existing private law statute (i.e. the Swiss Code of Obligations (“CO”) and the Swiss Civil Code) however, discrimination against an employee by the employer based on age may be considered a violation of the employee’s personality (although note that the courts have decided that it would not be discriminatory against a job applicant during the application process, see below). If an employee is dismissed on account of an attribute pertaining to the employee’s personality, such dismissal will be deemed unfair unless the attribute relates to the employment relationship or substantially impairs co-operation within the business. In this context, Swiss courts impose an increased duty of care on the employer with regard to elderly and long-serving employees, requiring the employer to take appropriate measures before giving notice of termination.
The CO applies to all employment relationships governed by Swiss private law. Accordingly, all employees principally enjoy equal protection against age discrimination. In practice, however, age discrimination has so far only been an issue in cases concerning employees of 50+ years of age in the context of dismissals. According to a recent court decision, it is admissible to reject a job applicant because of his age.
WHAT ENFORCEMENT/REMEDIES EXIST?
In order to claim compensation for unfair dismissal, the employee must object to the dismissal in writing within the notice period and file a court action against the employer within 180 days from termination of the employment.
If the employee successfully claims unfair dismissal, the court may compel the employer to compensate the employee. The amount of such compensation is in the court’s discretion but is limited to the amount of salary an employee receives in a sixth month period.
In some cases, the employee may also request that the employer rectifies the situation or claim damages for pain and suffering. However, in the context of dismissals, reinstatement is usually not granted.
HOW COMMON ARE CLAIMS?
There has been an increasing sensitivity surrounding age discrimination and this issue is more frequently heard in Swiss courts in the past few years.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE THE TRICKIEST ISSUES FOR EMPLOYERS?
Age discrimination is mainly claimed in connection with dismissals of employees. In this context, it is about assessing whether the employer had justified reasons for the dismissal and whether the employer has complied with its increased duty of care towards elderly and long-serving employees. In order to prove that due care was provided, the employer must demonstrate that it has taken appropriate measures before giving notice of termination, such as looking for alternative employment within the company, undertaking a consultation process, and/or warning of the employee and/or granting the employee probation in the event of poor performance. There was recently also one case brought by a job applicant whose application was rejected because of his age.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAW?
Currently, the statutory retirement age is 65 for men and 64 for women. The pension scheme established by the employer’s pension fund may provide for an earlier retirement age. Employment contracts often provide that the employment contract is terminated automatically when the employee reaches the statutory retirement age. This is not considered discriminatory.
Where this is not specified in the employment contract, the employment relationship will remain in force beyond the retirement age until it is terminated by either party.
Over the last few years, the Swiss Federal Supreme Court had to decide several cases where elderly and/or long-serving employees claimed that they were unfairly dismissed. These decisions were rendered based on individual circumstances of each case, which is why their binding effect is limited.
The High Court of the Canton of Zurich recently rejected a claim of a 51 years old accountant against a company which had rejected his application responding that it is not interested in applicants who are older than 40. The court held that there is no legal provision preventing the company from rejecting applicants due to their age.