In labor law, the principle of equal treatment prohibits an employer from placing an employee in a less favorable position than other employees without objective reasons. The cases in which equal treatment must be respected are diverse and varied.
Freedom of contract
In principle, the employer and the employee have freedom of contract. The employer can decide whether or not to hire a candidate and is free to negotiate the salary with him. If the employer wishes, he can also dismiss the employee, provided that the notice period is respected.
However, this freedom is limited. A number of laws provide for the principle of equal treatment. In addition, because of the employer's obligation to protect the personality of its employees, the employer may not discriminate against an employee without objective grounds.
Equality between women and men
The Law on Equality between Women and Men prohibits treating an employee differently because of his or her sex, either directly or indirectly. This equal treatment must be respected in particular for hiring, remuneration, promotion, assignment of tasks and termination.
Discrimination in hiring
Pregnancy, maternity leave, family responsibilities, breastfeeding or simply the belief that a woman will not be as capable as a man of doing the job... Employers retain certain prejudices and fears about hiring a young woman. On the contrary, they sometimes prefer to reserve the position for a woman rather than a man, especially for secretary or receptionist positions.
While employers are free to hire whomever they wish and to make their choice according to their own criteria, they must be vigilant. If an employer refuses to hire a candidate because of criteria directly or indirectly related to his or her sex, this constitutes discrimination in hiring. Under certain conditions, the rejected candidate can ask for compensation.
Equal pay for equal work
this is the principle of equal pay enshrined in the Federal Constitution. If the employer pays a female employee less than a male colleague, without any objective reason, this constitutes wage discrimination.
The female employee can ask for the payment of the difference in salary with retroactive effect, which could be very costly for the employer. However, in order to assert her rights, she must follow a certain procedure and provide proof of the unequal treatment, which is difficult in practice. The employer, on the other hand, must prove that he/she has objective and proportionate reasons for paying a female employee less than her male colleague.
Confidentiality of salary
In order to avoid salary claims or jealousy within the company, some employers provide for a salary confidentiality clause. The validity of such a clause is controversial. Indeed, it is sometimes problematic because it prevents the employee from being aware of a possible unequal treatment with his colleagues.
Agreement on the Free Movement of Persons (AFMP)
The AFMP stipulates that EU and EFTA nationals must not be discriminated against in terms of salary and working conditions because of their nationality or residence.
What about the employer who tries to take advantage of the situation to pay a lower salary to cross-border workers or to pass on the exchange rate to their salary? This is a violation of equal treatment and is unlawful. If, in addition, the employer does not respect the minimum wages provided for in collective employment contracts, he risks a fine of several thousand francs.
When relations become strained, the employer is tempted to dismiss the employee. Although the employer is generally free to do so, the principle of equal treatment sets limits. If the dismissal is based on sensitive and irrelevant criteria such as pregnancy, nationality or homosexuality, there is a high risk that the dismissal will be considered wrongful.
In times of economic crisis, employers are often obliged to modify contracts to the disadvantage of their employees. In principle, the employer is free to propose modifications that he deems appropriate to rectify the situation for all or part of his employees. However, he cannot, by virtue of the principle of equal treatment, propose unfavorable conditions only to cross-border employees or to the company's women.
Mass redundancies often go hand in hand with a social plan. The latter can provide for various measures, ranging from severance pay to benefits to facilitate the return to work. The principle of equal treatment applies in the granting of these benefits.
The employer is obliged to protect the personality of all employees and to refrain from vexatious behavior. When organizing a staff party, the employer must respect equal treatment and invite all employees.
A bonus is an amount offered by the employer at his discretion. As a general rule, the employer can decide to give it only to certain particularly deserving employees or not to pay it at all.
But beware! The principle of equal treatment requires caution. The employer must not disadvantage one of his employees to the detriment of all his colleagues without good reason.
The employer is obliged to protect the personality rights of his employees and in particular their religious convictions. They must not discriminate against certain employees because of their religion or grant privileges only to certain employees. Veils, wearing a necklace with a cross, prayer breaks... Employers who give in to their employees' requests sometimes get into trouble because of the principle of equal treatment.
Employees must be treated equally when it comes to their daily work breaks. This seemingly obvious principle can sometimes be problematic. Since the laws against passive smoking came into force, smoking at work is in principle prohibited. Faced with smokers' requests for additional cigarette breaks to go outside to smoke, the employer must think twice.