Equality between women and men
Since 1981, the Swiss Constitution provides for equal pay for women and men. For equal work, a female employee must receive the same salary as her male colleagues. The Law on Equality between Women and Men stipulates that it is forbidden to discriminate against workers on the basis of sex, particularly with regard to pay.
Swiss women seem to be well protected. But what about in practice? How can this seemingly vague principle be implemented in reality?
Freedom of contract
In principle, employers and employees are free to negotiate and conclude a wage agreement. An employee who negotiates a little less skilfully must in principle be satisfied with his or her salary. The Law on Equality is an exception. A difference in treatment between two colleagues of opposite sexes must be justified by objective reasons.
Whether they are personal (diplomas, language skills) or employer-specific (geographical area, business activity), the employer's criteria for setting salaries are diverse and varied. As long as they are objective and gender-neutral, these criteria are acceptable.
What about an employer who pays a mother less since she is less available for business travel because of her family responsibilities? Some situations are tricky and borderline.
When the employer bases a salary difference on an objective reason, he must still verify that this difference respects the principle of proportionality. Can he justify a salary difference of more than 15% because the employee has several years more experience than his female colleague? Not necessarily!
In the collective mind, a bonus is an exceptional remuneration, which depends on the goodwill of the employer. In principle, the employer is free to set the criteria to determine who is entitled to a bonus and how much.
However, equal pay also applies to bonuses. If the only woman in the company does not receive a bonus, as opposed to her male colleagues, there is a strong risk that the principle of equal pay will be violated.
In practice, the female employee who claims equal pay must prove that she is discriminated against on the basis of her gender compared to her colleagues. However, the employer's criteria for determining salary are often secret or unclear. Colleagues may have signed a salary confidentiality agreement. In light of these difficulties, the employee benefits from a relaxation of the burden of proof requirements for pay inequality.
Due to the difficulties in achieving equal pay in Switzerland, the Parliament decided to introduce an obligation for large companies to conduct a salary analysis. The purpose of this analysis is to determine whether the employer respects equal pay for women and men.
Only large companies, i.e. those that reach the threshold of employees set by law, are concerned by this obligation. To facilitate this analysis, the Confederation provides employers with software that aims to detect wage discrimination within the company.
The analysis carried out by the employer must be verified by an independent body which must have undergone specific training. The employer must then communicate the results to the employees within a certain period of time.
There are no direct consequences for the employer if this analysis reveals wage discrimination. However, the employer will have to deal with potential claims from discriminated employees and/or repeat this type of analysis on a regular basis.
Agreement on the Free Movement of Persons (AFMP)
Women are not the only ones to benefit from equal pay. The Agreement on the Free Movement of Persons (FMPA) also stipulates that employers must not discriminate against EU and EFTA nationals in terms of pay because of their nationality.
In times of economic crisis, employers are likely to offer lower wages to cross-border workers because of their greater purchasing power. They are also tempted to pay their salaries in euros, in order to pass on the unfavorable exchange rate to their salaries. These situations are particularly delicate.