Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Suisse (Ratification: 1961)

Articles 1 and 2 of the Convention. Effective protection of workers against discrimination in employment and occupation. Legislation, national policy and other measures. For many years, the Committee has been drawing the Government’s attention to the fact that the legal measures in force are inadequate to ensure the effective protection of workers against discrimination on all of the grounds enumerated in Article 1(1)(a) of the Convention, at all stages of employment, including occupational training, recruitment and terms and conditions of employment, and to enable them to assert their rights in this respect. With regard to discrimination based on sex, the Committee recalls that the Federal Act of 24 March 1995 on equality between women and men explicitly prohibits “discrimination against workers on grounds of sex, either directly or indirectly, in particular on the basis of their civil status, their family situation or, in the case of women, of pregnancy” (section 3(1)). In this regard, the Committee notes with interest that the Government refers in its report to the adoption on 28 April 2021 of the Equality Strategy 2030, a national gender equality strategy which focuses on combating discrimination, promoting equality at work, improving the work/life balance and prevention of violence.

Regarding racial discrimination, the Committee recalls that in its previous report the Government recognized that, in so far as the constitutional provisions are not directly applicable to relations between individuals and that the penal provision (section 261bis of the Penal Code) is not often applicable in the field of employment, victims have to avail themselves of the general provisions of the Civil Code or of the Code of Obligations, including general principles such as good faith or the invalidation of the contract. The Committee recalls that the provisions of the Convention, even where prevailing over national law, may not be sufficient in themselves to provide effective legal protection from discrimination to individual workers and that, where legal provisions are adopted to give effect to the principle of the Convention, they should include at least all the grounds of discrimination specified in Article 1(1)(a) of the Convention (General Survey on the fundamental Conventions, 2012, paragraphs 851 and 853).

In order to ensure the effective protection of workers against discrimination in employment and occupation and to enable them to assert their rights, the Committee requests the Government to take the measures necessary to establish, in addition to the Federal Act of 1995 on equality between women and men, an effective legal framework adapted to the world of work that: (i) includes a definition and a prohibition of direct and indirect discrimination; (ii) covers at least all the grounds other than sex enumerated in Article 1(1)(a) of the Convention, that is colour, race, religion, political opinion, national extraction and social origin; (iii) applies to all stages of employment and occupation, including recruitment. The Committee requests the Government to provide information on any other measure taken or envisaged to prevent and combat discrimination on these grounds in practice, as well as on any measure adopted under the Equality Strategy 2030 to combat gender discrimination in employment and occupation. It also requests the Government to provide information on the access to justice of victims of discrimination in these fields, on the legal basis used and the results obtained through the courts (penalties imposed and compensation granted).

The Committee is raising other matters in a request addressed directly to the Government.