Employment & Labour Law 2015 - The International Comparative Legal Guide to

 
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Employment & Labour Law 2015 - The International Comparative Legal Guide to
ICLG
The International Comparative Legal Guide to:
Employment & Labour Law 2015
5th Edition
A practical cross-border insight into employment and labour law

Published by Global Legal Group, with contributions from:
A. Lopes Muniz Advogados Associados                         Koep & Partners
Advokatfirmaet Grette                                       Koushos, Korfiotis, Papacharalambous LLC
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Hogan Lovells                                               Toffoletto De Luca Tamajo e Soci
Hogan Lovells BSTL, S.C.                                    Willkie Farr & Gallagher LLP
Homburger
The International Comparative Legal Guide to: Employment & Labour Law 2015

                                 General Chapters:
                                  1   Coming and Going – Issues when Structuring International Employment Arrangements –
                                      Elizabeth Slattery & Jo Broadbent, Hogan Lovells                                    1
                                  2   High-Stakes EEOC Class Action Litigation in America – Strategies for Global Employers –
                                      William C. Martucci & Kristen A. Page, Shook, Hardy & Bacon L.L.P.                        5
Contributing Editors
Elizabeth Slattery & Jo          Country Question and Answer Chapters:
Broadbent, Hogan Lovells
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                                  32 Spain                           Sagardoy Abogados: Íñigo Sagardoy de Simón & Gisella Alvarado Caycho               225
                                  33 Switzerland                     Homburger: Dr. Balz Gross & Dr. Roger Zuber                                        233
                                  34 Turkey                          Fırat-İzgi Attorney Partnership: Mehmet Feridun İzgi & Necdet Can Artüz            240
                                  35 United Kingdom                  Hogan Lovells: Elizabeth Slattery & Jo Broadbent                                   247
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Chapter 33

Switzerland                                                                                                  Dr. Balz Gross

Homburger                                                                                                 Dr. Roger Zuber

                                                                           Some terms are mandatory; others will only apply if the parties do
  1 Terms and Conditions of Employment
                                                                           not agree otherwise.
                                                                           Terms might be implied based on past practice. For example, if a
1.1    What are the main sources of employment law?                        bonus has been paid for years, the employee might have a contractual
                                                                           entitlement to such payments.
The main sources of employment law in Switzerland are the Code of
Obligations, the Labour Act and the terms agreed in the contract of        1.5   Are any minimum employment terms and conditions
employment. In some industries, mandatory collective bargaining                  set down by law that employers have to observe?
agreements will apply.
Additional legislation includes specific rights or obligations, e.g. the   There are statutory minimum employment terms and conditions,
Participation Act, the Act on Equal Treatment of Women and Men,            e.g. at least four weeks’ holiday per year and a notice period of not
the Data Protection Act, the Merger Act or the Ordinance against           less than one month.
Excessive Compensation.                                                    There is no statutory minimum salary. However, mandatory collective
                                                                           bargaining agreements provide for a minimal pay in certain industries.
1.2    What types of worker are protected by employment
       law? How are different types of worker distinguished?
                                                                           1.6   To what extent are terms and conditions of
                                                                                 employment agreed through collective bargaining?
Swiss employment law does not distinguish between different types                Does bargaining usually take place at company or
of workers, i.e. the same rules apply for all employees. There are               industry level?
some additional provisions for specific types of employees, e.g. for
pregnant women. Further, statutory rules regarding overtime will           There are collective bargaining agreements in certain industries,
not apply for members of senior management.                                e.g. construction, hotels/restaurants, pharmaceutical industry, etc.
Only self-employed persons are not subject to employment law.              Some collective agreements were declared mandatory for the entire
Not the wording of the contract, but whether an individual is, in          industry by the government.
fact, running their own business or not is relevant to determine if an     Bargaining usually takes place at industry level.
individual is considered as self-employed. If a person works under
the instructions of an employer and/or with the employer’s means of
work, he/she will be considered to be an employee.                           2 Employee Representation and Industrial
                                                                               Relations
1.3    Do contracts of employment have to be in writing? If
       not, do employees have to be provided with specific                 2.1   What are the rules relating to trade union recognition?
       information in writing?

                                                                           There is no statutory recognition process as in other jurisdictions.
Contracts of employment do not have to be in writing. However,             In general, trade unions have to be separate legal entities with the
certain terms need to be in writing and duly executed by both              main aim to improve conditions of employment, and they have
parties to be valid and binding, in particular if they deviate from the    to be independent from employers and other third parties and the
statutory default rules (e.g., terms regarding notice periods, overtime,
                                                                           membership has to be voluntary.
probationary periods, post-contractual non-compete obligations).
Moreover, the employee must be provided with the following particulars
in writing: names of the employer and employee; starting date of           2.2   What rights do trade unions have?
employment; function; compensation; and weekly hours of work.
                                                                           There are no specific statutory rights that employers have to be
                                                                           aware of.
1.4    Are any terms implied into contracts of employment?
                                                                           Collective bargaining agreements might provide for some rights
                                                                           of trade unions. In particular, to enforce the terms of collective
There are various implied terms which govern the employment
                                                                           bargaining agreements, e.g. minimal pay, joint commissions
relationship. Most of them are outlined in the Code of Obligations.
                                                                           (consisting of trade unions’ members and employers’ representatives)

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Homburger                                                                                                                    Switzerland

              might be established. Such commissions are entitled to get access to      the employer to protect the employee’s rights of personality. The
              certain documents like payroll data.                                      employer must not discriminate against an individual employee
              Further, there are joint commissions consisting of trade union            without objective reasons. Employees are only protected against
              members, employers’ representatives and governmental authorities          discrimination by employers; however, if such discrimination
              which shall ensure that employment terms will not unduly worsen           resulted in a violation of their rights of personality. Within that
              in certain industries. These official joint commissions have the right    limited scope, the employees are protected against discrimination
Switzerland

              to review employment conditions and they might recommend the              regardless of the basis of the discrimination, i.e. age, disability, race,
              government to declare existing collective bargaining agreements           political belief, religion or otherwise.
              compulsory for the whole industry or to issue minimal terms for           The Federal Disabled Equality Act only directly protects employees
              certain functions (such minimal terms currently apply for domestic        of the federal government; hence, disabled persons are protected
              work only on a national level).                                           within the framework of the general protection of their rights of
                                                                                        personality. There is, however, an increased protection in connection
              2.3    Are there any rules governing a trade union’s right to             with building laws.
                     take industrial action?                                            There is a broader protection against discrimination because of
                                                                                        gender. The Federal Gender Equality Act provides for detailed
              There is a constitutional right to take industrial action, but there      substantive and procedural rules that shall protect employees against
              are no statutory rules. Precedents suggest that a strike should           discrimination because of their gender.
              be considered as an action of last resort. Collective bargaining          Further, the international agreements between the European Union
              agreements will usually restrict the right to strike. It is discussed
                                                                                        (and its Member States) and Switzerland on the free movement of
              whether further conditions apply, in particular that strikes need to be
                                                                                        persons provide for equal treatment of employees who are nationals
              supported by a trade union and that the strike has to aim at a matter
                                                                                        of a contracting party. Such persons may not, by reason of their
              that can be dealt with in a collective bargaining agreement.
                                                                                        nationality, be treated differently from employees who are nationals
                                                                                        of the other contracting party as regards conditions of employment
              2.4    Are employers required to set up works councils? If                and working conditions, especially as regards pay or dismissal.
                     so, what are the main rights and responsibilities of
                     such bodies? How are works council representatives
                     chosen/appointed?                                                  3.2    What types of discrimination are unlawful and in what
                                                                                               circumstances?
              All businesses with more than 50 employees have to set up a works
              council on request of the employees. A fifth of the workforce (or one     The law protects against any sort of direct or indirect discrimination.
              hundred employees) can ask for a vote; if the majority of the voting      Discrimination is defined as treating an employee worse than others.
              employees support the request, elections have to take place. The          There is no protection against the (arbitrary) better treatment of
              election will be organised by the employer and employees jointly.         other employees. In addition, even arbitrary discrimination by the
              Only a few companies have set up a works council in Switzerland.          employer may be tolerated unless the discrimination results in the
                                                                                        violation of the employee’s rights of personality, in particular because
                                                                                        the discrimination reflects a disregard of the employee’s personality.
              2.5    In what circumstances will a works council have co-
                     determination rights, so that an employer is unable to
                                                                                        The Gender Equality Act protects employees against any kind
                     proceed until it has obtained works council agreement              of direct or indirect discrimination based on gender, including
                     to proposals?                                                      discrimination because of civil status, family situation and pregnancy.
                                                                                        The protection exists for the entire employment relationship, from
              Works councils only have information rights and they have to be           the negotiations on a new employment to retirement (and retirement
              consulted before certain decisions (regarding work safety, mass           benefits) and termination. It includes protection against unfavourable
              dismissals, transfer of a business or pension plans) are taken.           working conditions, lower salary, and sexual harassment.
              Further, see the answers to questions 6.9 and 6.10 regarding the
              social plan in case of a mass dismissal.                                  3.3    Are there any defences to a discrimination claim?

              2.6    How do the rights of trade unions and works councils               There is no unlawful discrimination if employers are able to
                     interact?                                                          establish that the unequal treatment does not result in the violation
                                                                                        of the employee’s right of personality, e.g. that there are valid
              There is no established way of interaction. In any event, only a few      reasons to treat one individual employee differently or rather
              companies have works councils.                                            that some employees are treated better than others (and not that
                                                                                        individual employees are discriminated against) or that the different
                                                                                        treatment is so minor that it does not result in a violation of the
              2.7    Are employees entitled to representation at board level?
                                                                                        rights of personality.

              No, they are not.                                                         The Gender Equality Act sets much more stringent standards, and
                                                                                        any discrimination that is based on gender, whether directly or
                                                                                        indirectly, is generally prohibited.
                3 Discrimination
                                                                                        3.4    How do employees enforce their discrimination
              3.1    Are employees protected against discrimination? If                        rights? Can employers settle claims before or after
                     so, on what grounds is discrimination prohibited?                         they are initiated?

              Protection against discrimination is based on the general duty of         A violation of the prohibition against discrimination is a violation of

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Homburger                                                                                                               Switzerland

statutory employment law and the employment contract. Employees         The rules on maternity leave do not cover the issue whether an
have to file a lawsuit with the courts that have jurisdiction for       employee continues receiving the contractually agreed salary if she
employment matters; a mandatory conciliation proceeding is part of      is not working during pregnancy and following birth (but for the
the proceeding. Employees can freely dispose of the claims made in      period of 14 weeks covered by the maternity leave rules). The right
discrimination proceedings, and claims are frequently settled before    to remuneration will depend on the duration of the employment
or after proceedings are initiated.                                     and the contractual agreement in the employment contract. In

                                                                                                                                                Switzerland
                                                                        addition, employers regularly are insured against the risk of
                                                                        employees not working during pregnancy and following birth. To
3.5   What remedies are available to employees in
      successful discrimination claims?                                 the extent insurance coverage exists and reaches a statutory limit,
                                                                        the insurance’s payments replace the claim to remuneration.
The main remedy in discrimination proceedings is monetary
compensation. Employees also have a right to an order of the court      4.3   What rights does a woman have upon her return to
prohibiting continuation of discrimination, or prevent a threatened           work from maternity leave?
discrimination.
In gender discrimination cases in connection with an alleged            Maternity leave does not change the terms of employment
discriminatory dismissal, the court can order the provisional re-       relationship. Hence, the employee will have the same rights and
employment of an employee and eventually cancel the termination         obligations upon her return to work as before the maternity leave.
and order the definitive re-employment. This is not possible in all     She will regularly have to continue the same job as before birth,
other discrimination cases in connection with alleged discriminatory    unless otherwise agreed with the employer.
dismissal, where the only available remedy is monetary
compensation.                                                           4.4   Do fathers have the right to take paternity leave?

3.6   Do “atypical” workers (such as those working part-                There are no statutory rights to paternity leave, but some collective
      time, on a fixed-term contract or as a temporary                  bargaining agreements and individual agreements provide for a
      agency worker) have any additional protection?                    right to take paternity leave.

There is special legislation on employment placement designed to
                                                                        4.5   Are there any other parental leave rights that
protect temporary workers that are placed by professional agencies.           employers have to observe?
In addition, certain collective bargaining agreements have special
rules for part-time workers, or workers that are on call. Finally,
                                                                        Parents have a statutory right to stay away from work for three days
legislation protects posted workers.
                                                                        to take care of sick family members.

  4 Maternity and Family Leave Rights                                   4.6   Are employees entitled to work flexibly if they have
                                                                              responsibility for caring for dependants?

4.1   How long does maternity leave last?
                                                                        No, they are not.

A female employee is generally entitled to 14 weeks of paid statutory
maternity leave following the child’s birth.                              5 Business Sales
In addition to the provisions on maternity leave, there are other
rules on pregnancy and status following birth. These rules provide,
                                                                        5.1   On a business sale (either a share sale or asset
in particular, that an employer shall not terminate the employment            transfer) do employees automatically transfer to the
relationship during pregnancy and during a period of 16 weeks                 buyer?
following birth. In addition, an employee must not work during
a period of eight weeks following birth, and she is only required
                                                                        If a business unit is transferred in an asset deal, the contracts of
to work during an additional period of eight weeks if she agrees
                                                                        employment assigned to this business will automatically transfer
to do so. Similarly, the employee is only required to work during
                                                                        from the seller to the buyer. Employees can object to the transfer.
pregnancy and during the nursing period if she agrees to do so.
                                                                        An objection results in a termination of the employment relationship
Moreover, collective bargaining agreements and the individual           after the expiry of the statutory notice period.
employment agreements often contain additional rules which
                                                                        A share sale does not affect the employment agreements, because the
further improve the position of the employee during pregnancy and
                                                                        identity of the employer will not be altered. Hence, employees will
following birth.
                                                                        still be employed by the same company under the same contracts.

4.2   What rights, including rights to pay and benefits, does
                                                                        5.2   What employee rights transfer on a business
      a woman have during maternity leave?
                                                                              sale? How does a business sale affect collective
                                                                              agreements?
During the 14 weeks’ statutory maternity leave, the contractually
agreed remuneration is replaced by a compensation of 80 per cent        Employees will work for a different employer after the transfer, but
of the last average remuneration. The compensation is presently         under the same employment contract. Hence, all current terms of
(2014) capped at CHF196 per day and the employer can recover            the employment contracts will transfer with the employees.
the payments from a social security fund. It is unclear whether
                                                                        The buyer has to comply with collective bargaining agreements for
employers have to top up payments to a certain extent.
                                                                        a period of one year after the transfer, unless such agreements will

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© Published and reproduced with kind permission by Global Legal Group Ltd, London
Homburger                                                                                                                  Switzerland

              expire or will be terminated earlier. In some industries, mandatory     employment. The length of the notice period is agreed in the
              collective bargaining agreements apply.                                 employment contract, subject to statutory rules on minimum length
              A share sale does not trigger a transfer.                               and equality of the notice periods for notice to be given by employer,
                                                                                      and employee.
                                                                                      An employment relationship can be terminated with immediate
              5.3    Are there any information and consultation rights on
                                                                                      effect for cause.
Switzerland

                     a business sale? How long does the process typically
                     take and what are the sanctions for failing to inform
                     and consult?
                                                                                      6.2    Can employers require employees to serve a period
                                                                                             of “garden leave” during their notice period when the
              Employees (or the works council, if there is one) have to be                   employee remains employed but does not have to
              informed about the reasons for the transfer and its legal, economic            attend for work?
              and social implications for the employees. If measures that might
              affect employees are considered (e.g., dismissals, change of terms      Yes, and it is general practice to put employees on garden leave
              and conditions of employment agreements), a consultation is             during their notice period in certain industries, such as the financial
              required. The consultation period should not be less than two weeks     service industry and for senior managers.
              (longer periods might be required in certain circumstances), and few    A ‘right to work’, which excludes the employer’s right to put
              additional days will be needed to prepare proper information and to     an employee on garden leave, only exists under very special
              consider any proposals made during the consultation.                    circumstances, in particular for jobs that require the employee to
              The law does not provide for specific sanctions for failing to inform   continuously work in order to keep certain qualifications (pilots who
              and consult in case of an asset deal. However, if the Merger Act        may lose their licence, artists, etc.).
              applies, employees have the right to block the commercial register
              if the employer failed to duly inform/consult. This can delay the       6.3    What protection do employees have against
              closing of the transaction.                                                    dismissal? In what circumstances is an employee
              No specific information or consultation rights apply in case of a              treated as being dismissed? Is consent from a third
                                                                                             party required before an employer can dismiss?
              share sale.

                                                                                      An employee is treated as being dismissed if either party to the
              5.4    Can employees be dismissed in connection with a                  employment contract has given notice of termination, and the
                     business sale?                                                   employment relationship ends at the end of the notice period. No
                                                                                      third-party consent is required for a dismissal.
              Yes, but a business need might be required for the dismissal.
                                                                                      Employees are protected against abusive dismissal. Such abuse
              Consultation has to be completed before notice is given. Mass
                                                                                      exists, for example, if notice of termination is given because the
              dismissals will trigger further consultation rights and notification
                                                                                      employee raises a bona fide claim arising out of the employment
              obligations.                                                            agreement, because the employee exercises a constitutional right,
                                                                                      because notice is only given to prevent the coming into existence of a
              5.5    Are employers free to change terms and conditions of             claim arising out of the contract, or because notice is given for a reason
                     employment in connection with a business sale?                   that is inherent to the personality of the other party (gender, race,
                                                                                      origin, nationality, age, etc.). An abusive dismissal will be effective,
              Employees have to be consulted regarding changes of terms and           but the employee is entitled to compensation (see below, question 6.5).
              conditions in connection with a business sale (see question 5.2         In addition, the employer shall not give notice of termination
              above). There are no further specific restrictions. Hence, the same     during protected periods. Such protection against dismissal exists
              rules apply as for an amendment of employment agreements that is        while the employee is on military or civil service or a foreign aid
              not in connection with a business sale: employers can unilaterally      project, or while the employee is totally or partially incapacitated
              change terms and conditions, but they have to take the applicable       to work because of sickness or accident (the latter protection period
              notice periods into account, i.e., no employee has to accept new        is limited to 30 to 180 days, depending on years of service). In
              terms before the contractual notice period expired. After the expiry    addition, protection against dismissal exists during pregnancy and
              of the notice period, the employee can either continue to work under    for a period of 16 weeks following birth. A notice of termination
              the new conditions, or quit the employment.                             given during such a protected period is null and void.
              Amendments to the detriment of employees only (e.g., cuts of
              base salaries, increase of working hours) might be deemed to be         6.4    Are there any categories of employees who enjoy
              abusive if the employer is unable to provide objective reasons for             special protection against dismissal?
              the change. Employees who will not accept the new conditions and,
              therefore, quit the employment after the notice period might be able    Whilst employees are all treated alike, certain rules will only protect
              to claim an indemnity of up to six months’ salary (see question 6.3).   specific categories of employees (e.g., pregnant women, etc.).
                                                                                      Further, there is a (dischargeable) presumption that the dismissal of
                                                                                      a member of the works council is abusive.
                6 Termination of Employment
                                                                                      6.5    When will an employer be entitled to dismiss for:
              6.1    Do employees have to be given notice of termination                     1) reasons related to the individual employee; or 2)
                     of their employment? How is the notice period                           business related reasons? Are employees entitled
                     determined?                                                             to compensation on dismissal and if so how is
                                                                                             compensation calculated?
              Employees have to be given notice of termination of their
                                                                                      Swiss law is governed by the principle that both the employer and

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Homburger                                                                                                                  Switzerland

the employee have the right to give notice of termination for any
                                                                             7 Protecting Business Interests Following
reason. No special reason is required. The dismissal must not be
abusive, however (see above, question 6.3).                                    Termination
Employees are generally not entitled to compensation on dismissal.
A rule on mandatory severance payments for employees who are               7.1   What types of restrictive covenants are recognised?
more than 50 years of age and have worked more than 20 years

                                                                                                                                                    Switzerland
for the same employer has become practically defunct because               Non-compete covenants are recognised by the law. All types of post-
payments made by the employer to the pension plan can be regularly         employment restrictions on the employee are regularly considered
deducted from the severance payment.                                       non-compete covenants and their enforceability is tested according
The employee is entitled to a compensation for up to six monthly           to the rules established for non-compete covenants.
salaries if the dismissal was abusive.

                                                                           7.2   When are restrictive covenants enforceable and for
6.6    Are there any specific procedures that an employer                        what period?
       has to follow in relation to individual dismissals?
                                                                           Non-compete covenants must be agreed in writing. The covenant
No. Collective bargaining agreements or individual agreements              is only enforceable if the employee had access to information on
frequently state that the notice must be in writing or must even be        the employer’s customers or to business secrets. In addition, the
served by registered mail.                                                 covenant is only binding if the use of the information obtained by the
                                                                           employee could seriously harm the employer. Further, any covenant
6.7    What claims can an employee bring if he or she is                   will become void if the employer gave notice without valid reason
       dismissed? What are the remedies for a successful                   or if the employee terminated the employment for a valid reason
       claim?                                                              for which the employer is responsible. Finally, the restriction must
                                                                           be reasonably limited with regard to its duration, the place where it
All claims regularly arising out of the employment contract become         should apply and the type of operation covered.
due upon termination of the employment relationship. It is disputed
whether the employer and employee can agree that certain claims            7.3   Do employees have to be provided with financial
(in particular claims arising out of deferred bonus schemes) only                compensation in return for covenants?
become due a certain period after termination.
Apart from claims arising because a dismissal is abusive (see above,       Payment of financial compensation is not a requirement, but
question 6.5), there are no other claims.                                  considerably increases the chances that a covenant can be enforced.

6.8    Can employers settle claims before or after they are                7.4   How are restrictive covenants enforced?
       initiated?
                                                                           In case of a violation of the covenant, the employer can ask for
In case of a true settlement: yes. However, the employee may not           financial compensation for the loss suffered. The contractual
waive mandatory claims arising out of the employment relationship          clauses often provide for a liquidated damages clause. In addition,
during the employment and before one month after the end of the            the employer can ask for a court order to prohibit the employee
employment.                                                                to continue the competing activity if the non-compete covenant
                                                                           expressly mentions such a right of the employer. The courts weigh
6.9    Does an employer have any additional obligations if it is           the interests of the employer and the employee, and may order
       dismissing a number of employees at the same time?                  the employee to stop the competing activity if the non-compete
                                                                           covenant is found to be enforceable.
The employer must consult with the employees before a final
decision on the dismissals is taken if the dismissal is considered
a ‘mass dismissal’ (i.e., dismissal within a period of 30 days of 10
                                                                             8 Data Protection and Employee Privacy
employees [for businesses with 20 to 99 employees], or 10 per cent
of the employees [for businesses with 100 to 299 employees] or             8.1   How do employee data protection rights affect the
more than 30 employees [for larger businesses]). In addition, the                employment relationship?
local labour office must be informed of the dismissals.
Further, companies with more than 250 employees have to agree on           The employer may handle data concerning the employee only to
a social plan with a union, a works council or the employees if they       the extent that such data concern the employee’s suitability for his
intend to dismiss at least 30 employees.                                   or her job or are necessary for the performance of the employment
                                                                           contract. Such data must have a close connection to the employment,
6.10 How do employees enforce their rights in relation to                  and any gathering of data must be strictly proportionate to its
     mass dismissals and what are the consequences if an                   purpose. Gathered data may only be used for its initial purpose and
     employer fails to comply with its obligations?                        must be protected against unauthorised handling by third persons.
                                                                           As a matter of principle, the employee must be aware of any data
The mass dismissal will be considered abusive if the employer has not      gathering and of its purpose, and consent to it. The same holds true
properly consulted with the employees. The employees have a claim          for any monitoring activities by the employer.
for payment of a penalty of up to two monthly salaries. If the employer
fails to inform the local labour office, the dismissal will not become
effective. In case the parties cannot agree on a required social plan
(see above, question 6.9), an arbitral tribunal will establish the plan.

ICLG TO: EMPLOYMENT & LABOUR LAW 2015                                                                                www.iclg.co.uk                 237
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Homburger                                                                                                                  Switzerland

              8.2    Do employees have a right to obtain copies of any                     9 Court Practice and Procedure
                     personal information that is held by their employer?

                                                                                         9.1   Which courts or tribunals have jurisdiction to hear
              Every employee is in principle entitled to get unlimited access to               employment-related complaints and what is their
              all data that has been collected in his or her regard. However, the              composition?
Switzerland

              employer may restrict, deny or postpone the access in case there is a
              legal exception of if he or she can show preeminent own interests or       The 26 cantons are responsible to organise the court system. Hence,
              interests of third persons not to (fully) grant the requested access. In   depending on the place of jurisdiction, either a labour court or an
              this case, the employer must disclose the applicable limitation and        ordinary district court will hear employment-related complaints.
              explain its reason to the employee.
                                                                                         Labour courts will often be composed of a legally qualified district
              The employee can exercise the right of access without preconditions;       judge and two lay judges, one elected on behalf of the employees/
              in particular, he or she does not need to show a particular interest.      trade unions and the other on behalf of the employers. If there is
              The right of access is exercised in writing, and is free of charge. In     no labour court, one or a panel of three (usually) legally qualified
              general, the employer has 30 days to respond in writing (and with          judges will hear the case.
              photocopies), provided the employee does not agree to another
              proceeding.
                                                                                         9.2   What procedure applies to employment-related
                                                                                               complaints? Is conciliation mandatory before a
              8.3    Are employers entitled to carry out pre-employment                        complaint can proceed? Does an employee have to
                     checks on prospective employees (such as criminal                         pay a fee to submit a claim?
                     record checks)?
                                                                                         There is a mandatory conciliation hearing before a claim can be
              Yes, employers may do so. However, these checks require the                filed. Thereafter, the proceedings start with an exchange of briefs,
              knowledge and consent of the employee; they must have a close              unless the amount in dispute is below CHF30,000 and it is decided
              connection to the employment and be proportionate.                         that proceedings should be oral only.
              As the case may be, the checks may concern licences, certificates          Courts are usually prepared to outline their preliminary view of the
              and non-compete covenants. If material to the employment, they             case during the first hearing. The majority of cases are settled based
              may involve extracts from criminal records, statements from the            on such preliminary assessments.
              debt collection office and statements concerning the employee’s
                                                                                         There are no court costs if the value of dispute is below CHF30,000;
              health state.
                                                                                         some cantons will apply a higher threshold. In all other cantons,
                                                                                         the claimant has to advance the likely costs. The amount of the
              8.4    Are employers entitled to monitor an employee’s                     court costs depends on the value in dispute and the canton where the
                     emails, telephone calls or use of an employer’s                     claim is filed; they can be considerable. If the claim is upheld, the
                     computer system?                                                    defendant will be ordered to reimburse the paid costs to the claimant.
                                                                                         In addition, the losing party will be ordered to compensate the other
              To the extent that the employment falls under the Labour Act,              party for its lawyer’s fees (payment made according to a schedule,
              monitoring mechanisms are not permitted if they are directed at            not actual fees paid).
              the employee’s behaviour. However, they may be permitted if they
              pursue other aims, for example, security or controlling the proper
                                                                                         9.3   How long do employment-related complaints typically
              use of the work infrastructure and working time. Monitoring                      take to be decided?
              mechanisms need to be codified in internal regulations and the latter
              communicated to the employees.
                                                                                         The conciliation proceeding should take a few weeks only.
              In general, an employer will only be able to monitor peripheral data       Thereafter, a straightforward claim in an oral proceeding (i.e., the
              (such as the point in time of the communications or interactions,          amount in dispute is below CHF30,000) should take less than six
              their length, and the involved connections). Monitoring the actual         months. Other cases might be pending for one to two years.
              content of communications requires outstanding interests, which
              the employer will not be easily able to show. As regards telephone
              communications, they are in principle protected by criminal law.           9.4   Is it possible to appeal against a first instance
                                                                                               decision and if so how long do such appeals usually
                                                                                               take?
              8.5    Can an employer control an employee’s use of social
                     media in or outside the workplace?                                  There is a right to appeal within 30 days after the judgment has been
                                                                                         handed down. In most cantons, a panel of three judges of the court
              An employer may control social media in the workplace if it is             of appeal will hear the appeal.
              necessary for the performance of the employment contract and
                                                                                         The Swiss Supreme Court will review decisions of courts of appeals
              further is proportionate. Under these conditions, an employer may
                                                                                         in employment matters if the amount in dispute exceeds CHF15,000.
              block social media completely.
                                                                                         Appeals are limited to points of law.
              In contrast, it is rather unlikely that an employer is able to show a
              legitimate interest in controlling an employee’s use of social media
              outside the workplace. However, this may for instance hold true for        Acknowledgment
              ideological enterprises (“Tendenzbetriebe”).                               The authors would like to thank Dr. iur. Pierre-Yves Marro, LL.M.
                                                                                         for his assistance in the preparation of this chapter.

  238         www.iclg.co.uk                                                                   iclg to: EMPLOYMENT & LABOUR LAW 2015
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Homburger                                                                                                                        Switzerland

                             Dr. iur. Balz Gross, LL.M.                                                  Dr. iur. Roger Zuber, MJur
                             Homburger AG                                                                Homburger AG
                             Prime Tower, Hardstrasse 201                                                Prime Tower, Hardstrasse 201
                             P.O. Box 314                                                                P.O. Box 314
                             CH-8037 Zurich                                                              CH-8037 Zurich
                             Switzerland                                                                 Switzerland

                                                                                                                                                         Switzerland
                             Tel:     +41 43 222 10 00                                                   Tel:     +41 43 222 10 00
                             Fax:     +41 43 222 15 00                                                   Fax:     +41 43 222 15 00
                             Email:   balz.gross@homburger.ch                                            Email:   roger.zuber@homburger.ch
                             URL:     www.homburger.ch                                                   URL:     www.homburger.ch

  Dr. iur. Balz Gross, LL.M. (born 1964) is a partner with Homburger           Dr. iur. Roger Zuber, MJur (born 1973) is a counsel in Homburger’s
  and the Head of Homburger’s top ranked interdisciplinary Employment          Employment Law Group.             He frequently represents clients in
  Law Group. His employment practice focuses on advice on top                  employment disputes before Swiss courts. Further, he advises
  management compensation, including bonus schemes, and                        clients with respect to all areas of employment law, in particular with
  related litigation and arbitration. Recognised a leading individual in       respect to the enforceability of bonus/incentive plans and regarding
  employment, litigation and arbitration in the relevant directories, he       the termination of employment relationships. His work also includes
  is also the deputy head of Homburger’s Litigation/Arbitration Practice       assistance to implement new employment terms and to transfer
  Team. He is an author of a commentary on Swiss cartel law (section           employment agreements in connection with transactions. Further, he
  on procedure), of the commentary on the Swiss Federal Act on                 assists client in case of mass dismissals and during negotiations of
  Jurisdiction and Enforcement (section on contracts), the commentary          social plans. Roger Zuber is co-author of a Commentary on the new
  on articles 68 to 96 of the Swiss Code of Obligations (relating to           Swiss Federal Act on Civil Procedure and he published several articles
  performance) and the commentary on the new Swiss Federal Act on              on different aspects of litigation and employment law.
  Civil Procedure (section intervention, joinder, litis denuntiatio) and has
                                                                               He was admitted to the Bar in 2000, worked for a leading business
  published on legal proceedings, fraud and money laundering, recovery
                                                                               law firm in Berne from 2001 to 2004 and joined Homburger in 2005.
  of assets and liability in tort.
                                                                               Education: Lic. iur./Dr. iur. Berne, 1998/2004; MJur, Oxford, 2005.
  From 1989 to 1992, he was a scientific assistant for contract and
  private international law at the University of Zurich, in 1993 a District
  Court Clerk, admitted to the Bar in 1994 and joined Homburger in
  1995.
  Education: Lic. iur./Dr. iur. Zurich, 1989/1996 (summa cum laude);
  LL.M., Harvard, 1995.

  Homburger is a leading Swiss business law firm with more than 120 lawyers representing and advising major international and
  Swiss clients.
  The members of Homburger’s Employment Law working group are drawn from Homburger lawyers in the various practice teams,
  in particular from the internationally leading Litigation | Arbitration, Corporate | M&A and Tax practice teams.
  Homburger represents its clients before Swiss courts and arbitration tribunals in employment-related matters and advises on all
  employment law issues, in particular on:
  ■■ employment contracts for executives, including compensation packages, non-compete covenants and “golden parachutes”;
  ■■ standard employment contracts and customised employment concepts (contracts, regulations, employee handbooks);
  ■■ employee participation plans and variable compensation schemes (e.g. long-term incentive schemes, management participation
     on acquisitions, stock option plans, bonus and gratification schemes);
  ■■ transfer of business units and outsourcing;
  ■■ business restructuring (staff reduction, collective dismissals), contract and gardening leave;
  ■■ data protection; and
  ■■ posting of employees and work permit applications.
  Homburger’s employment lawyers are in regular contact with distinguished employment experts in other jurisdictions.

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