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Switzerland found to have discriminated against men on pension benefits
The Swiss government has lost a gender discrimination case that has implications for the country’s gender laws.
Jess Feyder
A Grand Chamber judgment in the European Court of Human Rights has ruled against Switzerland’s government in a case where they were found to be discriminating based on gender in delegating widow and widower pensions.
The applicant argued that widows in a comparable situation would not have lost entitlement to the pension.
The court noted that between 1997 and 2010, the applicant had been in receipt of the widower’s pension and had organised key aspects of his life around the existence of the pension.
The applicant’s wife died in 1994, and their daughters were one year and nine months old and four years old — the situation made it necessary for the applicant to leave his job and devote himself full-time to caring for his family.
The court found that the delicate financial situation he found himself in at the age of 57; in view of the loss of the pension and with difficulties returning to an employment market from which he’d been absent for 16 years; was the result of the decisions he made in the interests of his family.
Widows, instead, retained their entitlement to a survivor’s pension even after their youngest child reached the age of majority.
The applicant relied on article 14 (prohibition of discrimination), in conjunction with article 8 (right to respect for private and family life) of the European Convention on Human Rights.
The government argued that gender equality had not yet been entirely achieved in relation to involvement in paid employment and the distribution of roles within the couple concerned, making it justifiable to rely on the presumption that the husband provided financial maintenance of the wife (the breadwinner concept), particularly when she had children, and thus afford a higher level of protection to widows than widowers.
In their view, the difference in treatment was not based on gender stereotyping, but rather on social reality.
The court found that although he had been in an analogous situation in terms of his subsistence needs, he had not been treated in the same way as a woman/widow. He had therefore been subjected to unequal treatment.
The government had not shown there were very strong reasons or “particularly weighty and convincing reasons” justifying the difference in treatment on grounds of gender.
The ruling has implications for widows/widowers pension legislation in Switzerland, and the court pointed out that any adjustments of pension schemes had to be carried out in a gradual, cautious, and measured manner, since any other approach could endanger social peace, the foreseeability of the pension system and legal certainty.
The court reiterated, however, that very weight reasons would have to be put forward before it could regard a difference of treatment based on the ground of gender as compatible with the convention.
The court reaffirmed that references to traditions, general assumptions or prevailing social attitudes in a particular country were no longer sufficient justification for a difference in treatment on the grounds of gender — whether in favour of women or men.
