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WORKING IN SWITZERLAND

Can a Swiss employer give preference to a candidate of one nationality over another?

While hiring job applicants based on their nationality may seem discriminatory, the fact is that in certain situations this practice is totally legal in Switzerland.

Can a Swiss employer give preference to a candidate of one nationality over another?
Sometimes, employers must 'discriminate'. Image by jacqueline macou from Pixabay

First things first: Swiss legislation prohibits discrimination in the workplace based on ethnic origin, nationality, religion, or sexual orientation.
In fact, an employer can’t even ask questions related to these areas.

So how is it possible that companies can choose to hire one foreign worker and reject another, based solely on what passports they hold?

And why isn’t this considered ‘discrimination’?

Strict criteria

Employers in Switzerland must comply with government rules, and specifically with the ‘hiring hierarchy’ that applies to the labour market.

This ‘pecking order’, as it were, gives employment priority for any job vacancy to Swiss citizens. If none can be found, then companies can hire workers from the European Union or EFTA state.

In case employees who are qualified for a given job are not available from among the EU / EFTA pool, then (and only then) companies can look for candidates from farther afield —  that is, from third nations.

This is, however, a much more difficult process because non-Europeans are subject to a quota system and more restrictive conditions.

READ ALSO: Switzerland’s planned work quotas for third-country nationals

So when applications from candidates in, say, India or Brasil, are turned down on the basis of their nationality, this rejection can’t be taken as an act of discrimination or racism, but rather as compliance with official rules.

From the purely practical point of view, it is also much easier for an employer to recruit from the EU / EFTA, as these workers have an almost unlimited access to Switzerland’s labour market; the only reason a company would not hire them would be if a Swiss candidate could fill a vacant position.

This means that if a Swiss citizen is hired instead of a foreigner, the latter can’t really claim he or she was discriminated.

The way the government looks at this is that foreign workers — regardless of their nationality — are here to fill the gaps in the labour market, and not to take the jobs away from the Swiss.

There are, however, regulations within those laws.

Let’s say two equally qualified candidates present themselves for a job: one is from Germany and the other from France.

In this case the employer must choose the applicant who is better suited for the position, based on criteria such as education and professional experience.

If the employer selects a candidate based on their nationality — for instance, he likes Germans more than the French (or vice versa) — that could be construed as a discriminatory act.

In the event no Swiss or EU / EFTA candidate could be found and the company is ready to hire non-Europeans, the same rule applies: selection must be based on ability and credentials, and not on nationality.

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TRAVEL NEWS

How do the EU’s new EES passport checks affect the 90-day rule?

As European travellers prepare for the introduction of enhanced passport checks known as the Entry & Exit System (EES), many readers have asked us what this means for the '90-day rule' for non-EU citizens.

How do the EU's new EES passport checks affect the 90-day rule?

From the start date to the situation for dual nationals and non-EU residents living in the EU, it’s fair to say that readers of The Local have a lot of questions about the EU’s new biometric passport check system known as EES.

You can find our full Q&A on how the new system will work HERE, or leave us your questions HERE.

And one of the most commonly-asked questions was what the new system changes with regards to the 90-day rule – the rule that allows citizens of certain non-EU countries (including the UK, USA, Canada, Australia and New Zealand) to spend up to 90 days in every 180 in the EU without needing a visa.

And the short answer is – nothing. The key thing to remember about EES is that it doesn’t actually change any rules on immigration, visas etc.

Therefore the 90-day rule continues as it is – but what EES does change is the enforcement of the rule.

90 days 

The 90-day rule applies to citizens of a select group of non-EU countries;

Albania, Andorra, Antigua and Barbuda, Argentina, Australia, Bahamas, Barbados, Bosnia and Herzegovina, Brazil, Brunei, Canada, Chile, Colombia, Costa Rica, Dominica, El Salvador, Georgia, Grenada, Guatemala, Honduras, Hong Kong, Israel, Japan, Kiribati, Kosovo, Macau, Malaysia, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Montenegro, New Zealand, Nicaragua, North Macedonia, Palau, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, San Marino, Serbia, Seychelles, Singapore, Solomon Islands, South Korea, Taiwan, Timor-Leste, Tonga, Trinidad and Tobago, Tuvalu, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Vatican City and Venezuela.

Citizens of these countries can spend up to 90 days in every 180 within the EU or Schengen zone without needing a visa or residency permit.

People who are citizens of neither the EU/Schengen zone nor the above listed countries need a visa even for short trips into the EU – eg an Indian or Chinese tourist coming for a two-week holiday would require a visa. 

In total, beneficiaries of the 90-day rule can spend up to six months in the EU, but not all in one go. They must limit their visits so that in any 180-day (six month) period they have spent less than 90 days (three months) in the Bloc.

READ ALSO How does the 90-day rule work?

The 90 days are calculated according to a rolling calendar so that at any point in the year you must be able to count backwards to the last 180 days, and show that you have spent less than 90 of them in the EU/Schengen zone.

You can find full details on how to count your days HERE.

If you wish to spend more than 90 days at a time you will have to leave the EU and apply for a visa for a longer stay. Applications must be done from your home country, or via the consulate of your home country if you are living abroad.

Under EES 90-day rule beneficiaries will still be able to travel visa free (although ETIAS will introduce extra changes, more on that below).

EES does not change either the rule or how the days are calculated, but what it does change is the enforcement.

Enforcement

One of the stated aims of the new system is to tighten up enforcement of ‘over-stayers’ – that is people who have either overstayed the time allowed on their visa or over-stayed their visa-free 90 day period.

At present border officials keep track of your time within the Bloc via manually stamping passports with the date of each entry and exit to the Bloc. These stamps can then be examined and the days counted up to ensure that you have not over-stayed.

The system works up to a point – stamps are frequently not checked, sometimes border guards incorrectly stamp a passport or forget to stamp it as you leave the EU, and the stamps themselves are not always easy to read.

What EES does is computerise this, so that each time your passport is scanned as you enter or leave the EU/Schengen zone, the number of days you have spent in the Bloc is automatically tallied – and over-stayers will be flagged.

For people who stick to the limits the system should – if it works correctly – actually be better, as it will replace the sometimes haphazard manual stamping system.

But it will make it virtually impossible to over-stay your 90-day limit without being detected.

The penalties for overstaying remain as they are now – a fine, a warning or a ban on re-entering the EU for a specified period. The penalties are at the discretion of each EU member state and will vary depending on your personal circumstances (eg how long you over-stayed for and whether you were working or claiming benefits during that time).

ETIAS 

It’s worth mentioning ETIAS at this point, even though it is a completely separate system to EES, because it will have a bigger impact on travel for many people.

ETIAS is a different EU rule change, due to be introduced some time after EES has gone live (probably in 2025, but the timetable for ETIAS is still somewhat unclear).

It will have a big impact on beneficiaries of the 90-day rule, effectively ending the days of paperwork-free travel for them.

Under ETIAS, beneficiaries of the 90-rule will need to apply online for a visa waiver before they travel. Technically this is a visa waiver rather than a visa, but it still spells the end of an era when 90-day beneficiaries can travel without doing any kind of immigration paperwork.

If you have travelled to the US in recent years you will find the ETIAS system very similar to the ESTA visa waiver – you apply online in advance, fill in a form and answer some questions and are sent your visa waiver within a couple of days.

ETIAS will cost €7 (with an exemption for under 18s and over 70s) and will last for three years.

Find full details HERE

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