I have a physical disability that severely restricts my freedom of movement. Fortunately, my employer set up a special office workstation for me where I can work without any obstacles.
For a long time I was happy there. However, a few months ago I got a new boss who likes to mock my physical infirmities. This affects me very much.
The boss also requires me to work faster. He threatens to pass on tasks from me to more efficient employees.
In this situation I became ill. My family doctor diagnosed me with depression. I have not asked for a doctor's certificate. However, I find it difficult to work.
Do I have to tell my employer about this diagnosis? Am I forfeiting my career opportunities by doing so? Or do I have to worry about being fired?
Valentina F.
It is commendable of Valentina's employer that he has set up a barrier-free workplace for her. But that is not enough. He would also have to protect her from discrimination.
People Must not Be Discriminated against because of a Disability
That disabled people like Valentina are harrowed at work is unfortunately not that rare. According to figures from the Federal Statistical Office from 2019, 26% experience increased levels of violence and discrimination.
When her boss wants to take tasks away from Valentina and makes fun of her disability, he violates his duty of care. An employer must protect the physical and mental health of his employees.
Valentina has every right to defend herself against the boss's behavior. She can talk to her boss's supervisor or her HR manager. She can also get support from the legal service of Employees Switzerland.
In Case of Sick Leave, the Reason Need not Be Communicated
Her family doctor has diagnosed Valentina with depression. Since she finds it difficult to work, Valentina is advised to discuss with her family doctor whether sick leave is appropriate.
Valentina is not obliged to inform the employer of the reason for her illness. In her case, however, it is advisable to note in a conversation with the boss's supervisor or the HR person that the boss's behavior is putting her under psychological strain.
Dismissal for Disability or Illness May Be Abusive
In the case of prolonged illness, the employer may generally terminate the employment after the expiry of the relevant lock-up periods. These last 30 days in the 1st year of service, 90 days from the second to the fifth, and 180 days from the sixth.
In Valentina's case, however, a dismissal would likely be abusive because the following conditions are met:
- Dismissal for a disability is abusive if it does not substantially affect the work.
- Dismissal because of an illness is abusive if a breach of the duty of care significantly caused that illness.
Alternative Workplace – Swiss Legislation Lags behind
In a similar case, the Court of Justice of the European Union issued a landmark ruling. If it is no longer reasonable to continue working at the current job, the employer must offer an alternative job. There may be an exception if the offer would place a disproportionate burden on the employer.
Valentina could only invoke this to a limited extent. Such a principle has yet to become established in Switzerland.
Disabled Persons Must Be Promoted Professionally
Instead of letting her boss hinder her career, Valentina would certainly have better chances of advancing professionally in a company with exemplary integration of disabled people.
In this context, the UN Convention on the Rights of Persons with Disabilities obliges Switzerland to promote the professional advancement of people with disabilities.
Disclosure of a Disability in the Application only if It Affects Work
If Valentina applies for a job with a new employer, she only has to disclose her disability to the extent that it affects her work. Since she is dependent on an accessible workplace, she must therefore mention her restrictions on freedom of movement.
Valentina, on the other hand, usually need not mention her depression. She can assume that it will disappear again in a better working environment.
Federal Government Wants to Better Protect Disabled People in Working Life
In March 2023, the Federal Council adopted the "Disability Policy 2023-2026" package of measures. The aim is to improve the Disability Equality Act.
Private employers are to be obliged to take reasonable measures so that employees with disabilities can pursue a job on an equal footing. People with disabilities should be explicitly protected from discrimination in employment.
This is good news for Valentina!
