Facts
On October 27, 1987, 19 kindergarten teachers, vocational and home economics teachers in the canton of Basel-Stadt applied for a higher wage based on Art. 4 para. 2 sentence 3 of the Federal Constitution (BV) from 1986 onwards. After several court proceedings, it was ultimately decided that the wage classification was discriminatory and the employees should be classified two pay grades higher.
On April 29, 1994, a further 582 kindergarten teachers, vocational and home economics teachers filed an application to be retroactively classified into the corresponding higher pay grades as of May 1, 1989, and to be paid the resulting wage differential. The Court of Appeal partially upheld the appeals and determined that the appellants should be classified two pay grades higher as of November 1, 1993 and be compensated accordingly.
558 of the original applicants then filed a constitutional appeal and an administrative court appeal to the Federal Supreme Court.
Considerations
The Federal Supreme Court upholds the constitutional appeal. It decides that the claim for non-discriminatory wages contained in Art. 4 para. 2 sentence 3 BV can also be asserted retroactively within the ordinary statute of limitations.
The Federal Supreme Court states that the principle of equal pay is a mandatory provision and a resulting claim can be asserted retroactively within the statute of limitations. This follows from the nature of the principle of equal pay as a directly applicable subjective individual right.
The Federal Supreme Court sees no grounds that would justify a…