In a progressing globalized and transforming environment, Swiss companies remain highly reliant on golden agers in order to avoid shortage of skilled and experienced workforces. Author: Marc Gugger
Swiss law only provides for non-extensive statutory provisions regarding elderly employees in particular related to their general health and safety. They however nonetheless require higher diligence, care and consideration in the overall employment lifecycle. Companies are therefore required to organize their employment culture, structure, processes, staffing, personnel development as well as their termination cases in accordance with age-specific risks, needs, qualifications, skills and abilities, always in compliance with statutory regulations and current legal practice. Companies committed to a respective sustainable age management will be rewarded with higher talent attraction, retention, productivity, less absenteeism as well as lower labor and litigation costs.
Health & Safety
Elderly employees (usually above the age of 50) require higher diligence, care and consideration in everyday employment processes. Swiss law, however, only provides few respective statutory provisions. The Federal Council has for example not made use of the possibility to reduce the average maximum weekly working time (of normally 45 hours). Still, there apply certain special rules in order to avoid or mitigate age-related increased physical and psychological risks. For example, elderly workers are not allowed to carry heavy loads and special consideration must be given to the room climate and illumination (e.g. at temperatures above 30 or below 15 degrees, excessive drafts, insufficient light).
Main focus of a company’s age management should however lie in an overall tailored flexible work and working time model (e.g. part-time, flextime, break time, overtime compensation), taking into consideration both employees’ qualifications, skills and abilities as well as their individual needs (e.g. targeted training, specialization, new challenges or higher work-life-balance).
Elderly workers are often more affected by job losses than their younger counterparts. High wage and social costs lead to a significantly reduced attractiveness in the labor market. Nevertheless, it is crucial for them to maintain the established standard of living and to cover the associated costs. This leads to a special need of protection. Consequently, the Federal Supreme Court has developed a leading practice according to which an elderly employee (over 58 years) with a longer service period (at least ten years) is subject to a higher employer duty of care. According to recent case law and legal practice, also other combinations of increased age and service years may lead to such a special protection. Employees therefore may most presumably already be better protected as from the age of 55, provided that they have a correspondingly higher seniority within the company. Conversely, also employees who are 63 or 64 years old and therefore close to ordinary retirement age, even with fewer years of service (e.g. five or six years) benefit from this duty.
Based on the requirement of careful exercise of the law, the Swiss Federal Supreme Court has derived an information and consultation obligation and a duty to seek joint solutions before pronouncing a termination against such elderly employees. Together with the employee, the employer has to clarify the causes, to look for possible alternative solutions (e.g. other work allocation, internal transfer, retraining, early retirement) and to give at least a “last chance” in case of low performance or misbehavior situations. Altogether it is necessary to carefully weigh the contrary interests for the maintenance or dissolution of the employment relationship against each other, whereby only the circumstances of the individual case can be decisive. Often less severe practice is applied in justified restructuring or mass redundancy situations, where reasonable hardship cases are taken into consideration. No prior consultation is required in exceptional extraordinary termination cases (for good cause). If the employer does not or only inadequately fulfill these obligations, an abusive termination may be present. The termination nevertheless remains valid, but leads to a compensation claim of the employee in the amount of up to six monthly wages.