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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 Allen & Overy LLP Latournerie Wolfrom Avocats Anderson Mōri & Tomotsune Law firm Šafar & Partners, Ltd Barrios & Fuentes Abogados Lund Elmer Sandager Law Firm Caiado Guerreiro & Associados Moravčević Vojnović i Partneri Cárdenas & Cárdenas Abogados Ltda. in cooperation with Schoenherr Chajec, Don-Siemion & Żyto Legal Advisors Nishith Desai Associates Dittmar & Indrenius Pachiu & Associates Drew & Napier LLC River Delta Law Firm Eduardo Vásquez Silva y Compañía, Abogados Sagardoy Abogados El-Borai & Partners Shook, Hardy & Bacon L.L.P. Ferraiuoli LLC Skrine Fırat-İzgi Attorney Partnership Stikeman Elliott LLP Funes de Rioja & Asociados Szecskay Attorneys At Law 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
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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
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professional when dealing with specific situations.
www.iclg.co.ukChapter 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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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
234 www.iclg.co.uk iclg to: EMPLOYMENT & LABOUR LAW 2015
© Published and reproduced with kind permission by Global Legal Group Ltd, LondonHomburger 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
ICLG TO: EMPLOYMENT & LABOUR LAW 2015 www.iclg.co.uk 235
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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
236 www.iclg.co.uk iclg to: EMPLOYMENT & LABOUR LAW 2015
© Published and reproduced with kind permission by Global Legal Group Ltd, LondonHomburger 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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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
© Published and reproduced with kind permission by Global Legal Group Ltd, LondonHomburger 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.
ICLG TO: EMPLOYMENT & LABOUR LAW 2015 www.iclg.co.uk 239
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