Equal pay for equal work
Talking about wages remains a taboo subject. Younger people and employees in creative professions, however, are more relaxed about the topic and are more willing to discuss their salaries. If unexplained differences emerge, this can lead to tension and demotivation within the team. In cases of gender-based pay disparities, employers may even face legal action. By Irmtraud Bräunlich Keller, lic. rer. pol., editor and labor law expert at the Beobachter Advisory Center.
In principle, wages are a matter for negotiation. There are no statutory minimum wages. Nor does the law prescribe fair wages. On the contrary: "With regard to the agreed content of the contract, any differentiation between individual employees is permitted," the Federal Supreme Court stated in a ruling. "If an employee negotiates less favorably than his colleagues, he must in principle accept the resulting poorer working conditions."
However, there is a limit to contractual freedom where pay inequalities are attributable to gender. Both the Federal Constitution and the Gender Equality Act, which came into force in 1996, stipulate equal pay for equal work for men and women. The Federal Supreme Court has repeatedly defined when pay differences between the sexes are justified and when they are not. The most important criteria:
- As a rule, wage differences that are based on objective reasons are not discriminatory: Education, seniority, experience, responsibility. However, the factors of professional experience and seniority become less and less important the longer the employment has lasted.
- Gender-neutral criteria can also be indirectly discriminatory, for example if too much weight is given to seniority without taking into account the typical family-related career interruptions of women.
- Better performance can justify wage differences if it is proven. The fact that higher performance - somehow - has an effect on work is not enough. Better work results are decisive.
- The situation on the labor market justifies wage differences only temporarily. The wage structure must be adjusted as soon as possible.
Female employees who are disadvantaged in terms of pay can defend themselves. They do not have to prove the discrimination, but only make it credible. If they succeed in doing so, the employer must prove the legitimacy of the pay difference. Those affected can demand fair pay for the future as well as back pay for a maximum of five years. In the cantons, there are arbitration boards against discrimination in employment, which can be called upon before taking legal action. If the conciliation procedure is unsuccessful, there is still the option of taking the matter to the labor court.
Important to know: Female employees who defend themselves against discrimination are protected against dismissal for the duration of an internal complaints procedure, arbitration or court proceedings and for six months beyond this period. A dismissal issued despite this would simply be invalid.
Book tip:
Employment law - from contract to termination
The need to find out about your rights in the workplace is growing. After all, those who are well-informed are better able to assert themselves on the job market today. From negotiating wages, concluding contracts, working hours, special working conditions such as working from home to termination and references:
The Beobachter employment law specialist answers all questions competently.
10th edition 2009,
Beobachter-Buchverlag,
ISBN 978-3-85569-412-9
272 pages, paperback,
Fr. 36.?.
However, there is a limit to contractual freedom where pay inequalities are attributable to gender. Both the Federal Constitution and the Gender Equality Act, which came into force in 1996, stipulate equal pay for equal work for men and women. The Federal Supreme Court has repeatedly defined when pay differences between the sexes are justified and when they are not. The most important criteria:
- As a rule, wage differences that are based on objective reasons are not discriminatory: Education, seniority, experience, responsibility. However, the factors of professional experience and seniority become less and less important the longer the employment has lasted.
- Gender-neutral criteria can also be indirectly discriminatory, for example if too much weight is given to seniority without taking into account the typical family-related career interruptions of women.
- Better performance can justify wage differences if it is proven. The fact that higher performance - somehow - has an effect on work is not enough. Better work results are decisive.
- The situation on the labor market justifies wage differences only temporarily. The wage structure must be adjusted as soon as possible.
Female employees who are disadvantaged in terms of pay can defend themselves. They do not have to prove the discrimination, but only make it credible. If they succeed in doing so, the employer must prove the legitimacy of the pay difference. Those affected can demand fair pay for the future as well as back pay for a maximum of five years. In the cantons, there are arbitration boards against discrimination in employment, which can be called upon before taking legal action. If the conciliation procedure is unsuccessful, there is still the option of taking the matter to the labor court.
Important to know: Female employees who defend themselves against discrimination are protected against dismissal for the duration of an internal complaints procedure, arbitration or court proceedings and for six months beyond this period. A dismissal issued despite this would simply be invalid.
Book tip:
Employment law - from contract to termination
The need to find out about your rights in the workplace is growing. After all, those who are well-informed are better able to assert themselves on the job market today. From negotiating wages, concluding contracts, working hours, special working conditions such as working from home to termination and references:
The Beobachter employment law specialist answers all questions competently.
10th edition 2009,
Beobachter-Buchverlag,
ISBN 978-3-85569-412-9
272 pages, paperback,
Fr. 36.?.
Do you need legal advice?
The Beobachter Consulting Center offers you and your employees expert advice by telephone on legal issues concerning your company - 6 months for only Fr. 99.-. Order the consulting package for SMEs at
www.beobachter.ch/kmu or 0800 83 0800.
The Beobachter Consulting Center offers you and your employees expert advice by telephone on legal issues concerning your company - 6 months for only Fr. 99.-. Order the consulting package for SMEs at
www.beobachter.ch/kmu or 0800 83 0800.
