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 thus applies to employment relationships governed by Swiss public law (e.g. members of the civil service). In contrast, it does not apply among 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 of the employee by the employer based on age may be considered a violation of the employee’s personality. Furthermore, if the employee is dismissed on account of an attribute pertaining to the employee’s person, such dismissal is 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 become an issue where employees of 50+ years of age were dismissed.
What enforcement/remedies exist?
If a violation of the employee’s personality due to age discrimination is claimed, the court may be asked to prohibit the threatened age discrimination, to order that an existing age discrimination cease or to declare that the age discrimination is unlawful if it continues to have an offensive effect. Furthermore, in severe cases, the employee may claim damages for pain and suffering.
If the employee claims unfair dismissal, the court may compel the employer to pay the employee compensation. The amount of such compensation is in the court’s discretion but must not exceed the amount of salary an employee receives in a sixth month period. However, the dismissal remains effective and the employee is not entitled to reinstatement.
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.
How common are claims?
So far, approximately nine age discrimination cases brought by employees with an employment contract governed by Swiss private law have been reported. All cases are from the last couple of years, which indicates an increasing sensitivity for this subject matter.
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 he has complied with its increased duty of care towards elderly and long-serving employees. In order to prove that due care was used, the employer must demonstrate that they have taken appropriate measures before giving notice of termination, such as looking for alternative employment within the company, consultation and/or warning of the employee and/or granting the employee probation in the event of poor performance.
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.
In lack of an automatic end clause, the employment remains in force beyond the retirement age until terminated by the employer or the employee.
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.