Extent of Protection
In Switzerland, employees have the right to equal pay for equal work, or work of equal value, irrespective of gender. Since 1981, equal pay has been enshrined in the Federal Constitution (Art. 8) and since 1998 this principle is specified in the Swiss Gender Equality Act.
Workers may not be discriminated against on grounds of their sex, especially with reference to their marital status, their family situation or, in the case of female workers, pregnancy. The prohibition applies in particular to the recruitment, the allocation of tasks, the organisation of working conditions, remuneration, training, promotion and dismissal.
Since 1 July 2020, the amendment to the Swiss Gender Equality Act has obliged companies with 100 or more employees to conduct wage equality analyses.
Remedies
The provisions of the Swiss Gender Equality Act are intended to facilitate effective enforcement of the law. This includes the introduction of free proceedings before the Cantonal courts for disputes relating to equality claims, the easing of the burden of proof, representative actions and protection against revenge dismissals. Swiss law does not provide for criminal sanctions in case of violations of equal pay regulations.
Enforcement/Litigation
Shortly after the introduction of the Gender Equality Act, several worker unions in the health and care industry, successfully claimed higher salaries for the predominantly female personnel engaged in medical therapy and care. The claimants compared the salaries of such nursing professions with the salaries of the predominantly male police officers. As a result of the litigation, the Canton of Zurich had to compensate approx. 3000 employees with more than CHF 32 mio Swiss francs retroactively.
Apart from a few minor cases each year, one particularly interesting case that is attracting media attention involves an action brought against Berne University Hospital, which deals, indirectly, with equal pay (differentials). A female employee who had been dismissed because she campaigned for women’s rights and against discrimination within the hospital, has sued the hospital for five million Swiss francs. According to the claimant, the five million constitutes the amount of income she is missing, because she was abusively dismissed in 2014. It is the difference between the lifetime income she would have earned – as an already habilitated physician – if she had become chief physician and professor, and the amount she could have earned in her stalled career. Berne Hospital disputes the allegations and as of November 2020, the case is still pending.
Other Requirements
Employers with more than 100 employees (headcounts) must carry out an internal wage equality analysis. The results of the analysis must be externally verified by an independent body and communicated to the employees and shareholders (in case of listed companies).
If the analysis shows that pay equality has been maintained, further analysis will not be necessary. Otherwise, the analysis must be repeated after four years.
Failure to comply with the provisions on wage equality analysis or any gender-discriminatory wage gap identified in the course of such analysis, has no direct consequences for the employer concerned, as there are no corresponding sanctioning provisions in the law. Employers are therefore not required to take any further measures to submit a report on equal pay, nor are they required to report to the state, nor are they placed on a publicly accessible list. However, employers should anticipate the likely risks and damage to their reputation due to the information requirements. Furthermore, any wage discrimination against employees that has been established, can be used as evidence in wage discrimination lawsuits.
