Disabled worker’s complaint upheld in Geneva
A woman suffering from multiple sclerosis was eliminated after the birth of her daughter. They sued their employer for discrimination.
the essentials in brief
- A disabled woman sued her employer for discrimination.
- The lawsuit of the woman suffering from multiple sclerosis was approved by the court.
A woman with disabilities complained about discrimination after being released by the Hospice général of the canton of Geneva. The federal court partially allowed her complaint, considering that her allegations had not been adequately investigated. The cantonal court must now die again over the books. Inclusion handicap speaks of an “important success”.
The complainant, who suffers from multiple sclerosis, loses her job at the Hospice général, a public welfare institution in the canton of Geneva. She was given notice about a year after the birth at the end of June 2020. She had worked there since 2017 as a daughter counselor for professional reintegration and later as a social worker.
symptoms due to pregnancy
Her employer had extended her fixed-term contract several times. The impact of her illness was compounded by her pregnancy, Inclusion Handicap said in a statement.
Although the doctor treating her certified her limited ability to work, the Hospice Général refused to extend her contract. This is despite its proven practice of hiring staff on a temporary basis and employing them on a permanent basis if they are satisfied. In addition, there were several vacancies for which the complainant had duly applied.
Discrimination by Hospice Général
The employer’s medical officer had previously made disparaging remarks about the complainant to the doctor treating her: “Madame fait désordre dans les locaux et choque” (roughly: “The woman is untidy and shocked”).
From all this, the applicant concluded that she had been discriminated against by Hospice général, although her work had been satisfactory. In particular, she felt that her disability and pregnancy had kept her away from her job.
Cantonal court must reconsider case
The cantonal court did not find that the termination of her employment was based on mere prejudice related to these elements. It refuses to hear the treating doctor as a witness to determine the facts. It also does not require the employer to provide documentation of best practice in hiring and retaining staff.
In its judgment of April 14, the Federal Supreme Court partially upheld the appeal by sending it back to the lower court. It asked the cantonal court to re-examine the case and decide again.
Discrimination not compatible with federal constitution
According to the judges, the lower court violated the right to a fair hearing. Because she refuses the testimony and evidence offered by the applicant. This could possibly have proved that the public-law employer had discriminated against the complainant because of her disability. According to the Federal Court, such discrimination is not compatible with the UN Convention and the Federal Constitution.
Inclusion requirement, which the complainant represented in the proceedings, welcomes the decision: “It is interesting and gratifying that the Federal Supreme Court is putting protection at the center of its argument.” This is recorded by the umbrella organization of Swiss organizations for the disabled.
For the first time, the Federal Supreme Court has ruled that the ban on discrimination due to a disability violates the authorities’ duty to take precautions in the workplace. It also recalls that this prohibition of discrimination under international law is directly applicable to Swiss courts.
The Federal Supreme Court expressly leaves open what consequences the existence of discrimination will have. It gave the court to understand that both the UN Convention and the Constitution must be taken seriously.
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