Employers discriminate against the unemployed
Pärli notes that the general preference for younger people in the labor market is based heavily on prejudices: "General assumptions that the mental and physical abilities decrease in old age do not stand up to the findings of recent age research." Aging processes take place individually. And with many older people there is often untapped potential to mobilize and develop their own professional skills.
State and economy are becoming more similar
Now, roughly speaking, there are two sectors in the labor market, according to the law professor. In the case of employment under public law in Switzerland, the employer, usually the state, is bound by fundamental rights - including, above all, the prohibition of discrimination enshrined in the federal constitution, which also mentions age. In practice, however, statutory age limits can be set for certain professions, such as border officers or police officers.
For employment relationships under private law, on the other hand, as is customary in business, freedom of contract applies. This is extremely important in this country. Although employment contracts under private law impose a number of restrictions on employers, dismissals, for example, usually affect the elderly. However, it also happens that dismissals are judged to be abusive only on the basis of age, as the Federal Supreme Court has ruled in several cases.
It should be noted, says the lawyer, that public personnel law and private law are increasingly converging today. On the one hand, civil servant status was abolished - and on the other hand, the courts increased the duty of care for private employers in the economy.
Layoffs hit older people particularly hard. For them, losing their jobs has significant consequences, for example, as social security benefits are reduced in old age. This also applies to compulsory retirement if the person concerned would like to continue working beyond retirement age. However, Pärli considers such termination of contracts to be fundamentally permissible under applicable law.
Age discrimination is legally difficult to fight in Switzerland due to the lack of a law. There are also hardly any court cases for age-related non-employment. In this country, employees would not have effective legal protection if their application failed for reasons of age: "Unlike in other countries, there is no clear legal protection against discrimination based on age in this country," says Pärli.
So what solution does the labor lawyer propose? In any case, a legal regulation should be aimed for. This would have to be “neutral” towards age, as the lawyer puts it. According to him, it should go in the direction of stronger protection against dismissal and a ban on discrimination in employment. A future law could generally cover discrimination as an infringement of personality and not just be limited to age. The introduction of the right of association complaints would also be conceivable, as well as effective sanctions for wrongful employers depending on their size - for example fines amounting to a certain percentage of the annual turnover.
Kurt Pärli is Professor of Private Social Law at the University of Basel. In addition to anti-discrimination law, he researches, among other things, the law of professional reintegration, labor and social security law, as well as health and data protection law.
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