A verdict of the Zurich Labor Court dated November 11, 2024, has caused a stir: The well-known journalist Anuschka Roshani sued TX Group, among other things the publisher of the Tages-Anzeiger and the "Magazin", and demanded the revocation of her termination. The Zurich Labor Court (partially) gave her the right and revoked the termination. The plaintiff's requests for a declaration were not granted, and the requests for satisfaction and compensation were dismissed.
The judgment, although not yet veröffentlicht, was öffentlich controversially discussed and shifted the öffentlichen focus onto a law, über which the media otherwise rarely report: the Equality Act (GlG), from which Roshani primarily derives her Ansprüche. For example, the NZZ to report that Roshani, based on the (not yet rechtskräftigen) judgment, has a claim to «mindestens 33 Monatslöhne», which particularly lies in the „Besonderheiten» of the Equality Act.
Exception to the principle of freedom of termination
In fact, the (judicial) annulment of a termination in Swiss law is an exception. Even if a termination is abusive or a summary dismissal is unjustified, the termination of the employment relationship under the principles of the Code of Obligations, where the employment contract is regulated, is generally valid. The so-called freedom of termination applies, which is why a claim for reinstatement cannot be made. The situation is different under the provisions of the Gender Equality Act. The GEA provides that the termination by the employer is contestable if it follows without justified reason an in-house complaint about discrimination or an appeal to the conciliation body or the court by the employee. This protection against termination applies for the duration of the in-house complaint procedure, a conciliation or court procedure, as well as six months thereafter.
In the specific case, the journalist asserted discrimination by her supervisor at the employer, the former editor-in-chief of the «Magazin». Several media reported at the time über the case, including the German news magazine „Der Spiegel», which published a guest contribution by Roshani published, in which she raised these serious allegations. Tamedia responded with a public statement from the editorial board. The well-known media entrepreneur Roger Schawinski even wrote a book on the case.
The TX Group commissioned an investigation into the allegations and subsequently had a second investigation conducted. In addition, the editor had filed a conciliation request, with which she demanded a finding that she had been discriminated against within the meaning of the Gender Equality Act.
Protection against dismissal under the Gender Equality Act
The Labor Court concludes in its judgment that both the second investigation and the conciliation request filed triggered protection against termination under the Equal Treatment Act and that the protection period had not yet expired at the time of termination of the employment relationship. During this period, there is effectively a prohibition on termination. An exception exists only if the termination is made for 'reasonable cause'. It is assumed that there is a causal link between the alleged discrimination and the termination.
It is incumbent upon the employer to prove that there was a justified reason for the termination and that it was not a retaliatory termination. If it fails to provide this proof, the termination will be annulled. Unlike in the case of abusive termination, under the Equal Treatment Act, the burden of proof lies not with the employee, but with the employer.
Labor Court: no sufficient reason for termination
In the present case, the TX Group argued in particular that the allegations made by the editor had caused unrest in the team and that the employees were in a conflict of loyalty. It was feared that this situation would have a negative impact on the team's performance and thus on its success. In addition, the editor had already claimed before the investigations were completed that she no longer wanted to work with her supervisor.
The court did not consider the alleged disturbances to be sufficiently proven, noting that it was in any case the employer's responsibility to counteract such consequences. The circumstance that the editor no longer wanted to work with her supervisor was considered by the court to be the logical consequence of the editor's misconduct, which is why this did not constitute a sufficient reason for termination.
The court had further to examine whether the editor had initiated the internal complaint procedure and the conciliation procedure in an abusive manner. The protection against dismissal under the GlG only takes effect if the protective standard is invoked in good faith and not in an abusive manner. The court found that there were certain indications that raised questions, but it could not be concluded from this alone that the entire action was brought for abusive reasons. It did not consider the abusive motives put forward by the employer to be sufficiently demonstrated or proven.
Since the employer was unable to prove either a justified reason for termination or abusive motives on the part of the editor for initiating the measures against discrimination in a legally sufficient manner, the termination pronounced by the employer was annulled by the court.
The (open) question of the compensation consequences
The decision, however, does not reveal what compensation consequence the annulment of this termination has - i.e. whether the reported 33 monthly salaries are actually owed. The court has not (yet) dealt with this question. From an employment law perspective, the interesting question arises as to whether the salary is owed for this period. In employment law, the principle "no work, no pay" applies. If the employee is unable to work due to the employer's fault or if the employer is in default of acceptance of the work, the employer remains obligated to pay the salary. Whether there is such a fault on the part of the employer in this case is unclear and is likely to be disputed by the defendant. The question of the compensation consequence therefore certainly has the potential to generate further material for the proceedings.
Furthermore, the TX Group angekündigt, das Urteil an die nächsthöhere Instanz, das Zürcher Obergericht, weiterzuziehen. The final word in this case has not yet been spoken.
The judgment of the Labor Court Zürich of 11 November 2024 (Case No. AN220047-L/U) was not officially published, but we have obtained access. It is – as of January 2025 – not final. Here you can find the press release of the District Court Zürich regarding the first-instance decision.
