Wage discrimination due to pregnancy

The Swiss Federal Supreme Court had to deal with questions regarding discrimination against a pregnant woman in the workplace in proceedings concerning claims arising from the employment contract, whereby it was questionable whether a bonus is owed during maternity (BGer 4A 597/2023 of May 15, 2024).

The dispute centered on the question of whether and to what extent bonus payments are owed during maternity leave. The dispute concerned two contract amendments concluded between the employer and the pregnant employee. The first contract adjustment was signed on March 14, 2018 and concerned a salary increase as of March 1, 2018. The second contract adjustment concerned a one-off bonus payment to be paid in July 2018 and continued salary payments at 100% during the maternity leave of 16 weeks.

The Gender Equality Act (GIG) and the Swiss Code of Obligations (CO) are relevant with regard to discrimination on the basis of gender. Art. 3 GIG states that employees may not be directly or indirectly disadvantaged on the basis of their gender. If there is discrimination pursuant to Art. 3 GIG, the court will, among other things, order the salary owed (Art. 5 para. 1 lit. d GIG). The discrimination with regard to pay must be substantiated by the person concerned (Art. 6 GIG). If the prima facie case is successful, discrimination is presumed and the employer must prove that the difference in pay is objectively justified. Discrimination in the GIG applies not only to the basic salary, but also to other remuneration such as bonus payments, gratuities and other financial benefits. The ban on discrimination in bonuses is therefore generally applicable. In case law, the ban on discrimination in bonuses is dealt with, for example, in BGer 4A_651/2017 or BGE 129 III 276, where it is explicitly mentioned. According to the Federal Supreme Court, the employee can demand a bonus payment based on the principle of equal treatment pursuant to Art. 328 CO if the employee is placed in a significantly less favorable position than a large part of the workforce or the relevant department and there is no objective reason for the unequal treatment.

In the present case, the parties have agreed a non-genuine bonus, but the employer has a certain discretion in determining the amount. The question in this case was whether the 25 days of "pregnancy-related absence" of the complainant and also her absence during the 9th to 16th week of maternity leave should be taken into account as a period of employment when calculating the bonus. According to the contractual agreement, the annual performance should have been decisive for the bonus, from which it follows that longer absences can also be taken into account, as the bonus should be a recognition of the performance actually rendered. It is therefore perfectly justifiable to reduce the bonus for longer absences, regardless of the reason for the absence. According to the Federal Supreme Court, it is undisputed that the reduction of the bonus during the first eight weeks after the birth is discriminatory and therefore inadmissible. During this period, the mother is legally prohibited from working, i.e. she is not allowed to work at all. Only women are affected by a bonus reduction due to the first 8 weeks of maternity. A pregnant woman would be placed in a significantly less favorable position than a large proportion of the workforce. Such a reduction would constitute discrimination and violate the GIG.

However, there is no discrimination under Art. 3 GIG in this case, as according to the law at the time, the employee would have been allowed to work from the 9th to the 16th week of maternity leave (voluntary withdrawal). This period is outside the statutory prohibition of employment and the employer is not obliged to continue to pay wages unless this has been specifically agreed in the contract. As the employer does not have to pay the employee's salary from the 9th to the 16th week by law, the reduction of the bonus is therefore also in order. Voluntary maternity leave is thus treated in the same way as a longer absence for other reasons, such as longer unpaid leave, which may also be taken into account as a reason for reducing the bonus. There is therefore no discrimination, as the employee was not entitled to the bonus in the required amount and both genders are treated equally. Mothers are therefore not inadmissibly disadvantaged compared to other female employees.

The Federal Supreme Court only gave cursory consideration to the fact that the employee receives maternity insurance benefits after giving birth. It has claimed that this income for the employee is a further reason why there is no discrimination . The mother receives compensation both during the period of compulsory entitlement and during the period of voluntary entitlement to maternity leave, which is why voluntary entitlement should not be privileged over longer absences for other reasons in the bonus payment and ultimately there is no discrimination. However, the relationship between continued salary payments during maternity leave was not addressed. It is undisputed that the statutory maternity insurance replaces the employer's obligation to continue to pay wages (PORTMANN/RUDOLPH, Basler Kommentar zu Art. 324a, margin no. 36, GEISER/MÜLLER/PÄRLI, Arbeitsrecht in der Schweiz, margin no. 1050). However, if there is no entitlement to a salary or the full salary (as maternity insurance only covers the salary up to a maximum of CHF 8250 per month), it remains unclear how there can be an entitlement to a bonus during this period, precisely because there is no obligation to pay the full salary for the entire period of maternity leave, i.e. also during the first 8 weeks. The critical question must be asked as to how it can be that you are not entitled to full pay in the first 8 weeks, but are entitled to a voluntary bonus.

The court rightly found that a reduction in the bonus (at least after the first 8 weeks) appears objectively justified, as the performance or output of an employee who is absent for a longer period of time is lower overall than if the employee worked for the whole of 2018. The reason for the longer absence is irrelevant.

However, employers are well advised to clearly and unambiguously define their own bonus plans with regard to absences (e.g. illness, pregnancy, maternity), as there are often no provisions at all in this regard.

About the authors:

Ueli Sommer is Managing Partner of Littler Switzerland.

You can reach him at +41 44 219 60 61 or ueli.sommer@littler.ch.

Cédric Bamert is a Junior Associate at Littler Switzerland.

You can reach him on +41 44 219 60 62 or cedric.bamert@littler.ch.

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