Rights and Obligations of Employees and Employers in Switzerland
Swiss employment law establishes a precise legal framework governing relations between employers and employees. This complex domain rests on several legal sources including the Code of Obligations (CO), the Employment Act (EA) and various collective agreements. A thorough knowledge of these rules constitutes a fundamental advantage for both companies and employees wishing to understand their respective prerogatives and responsibilities. Our law firm specialising in employment law accompanies Swiss economic actors daily in navigating this sophisticated legal framework, offering solutions adapted to the contemporary challenges of the Swiss professional world.
The Employment Contract in Switzerland: Foundations and Particularities
The employment contract represents the cornerstone of every professional relationship in Switzerland. Although written form is not mandatory for its validity, it remains strongly recommended for evidential purposes. The Code of Obligations (art. 319 to 362) defines the constituent elements of an employment contract: performance of work, the relationship of subordination and remuneration.
In Switzerland, several types of contracts coexist:
- The open-ended contract (CDI), the most common form
- The fixed-term contract (CDD), which ends automatically at the agreed date
- The temporary employment contract, involving a tripartite relationship
- The apprenticeship contract, combining training and work
The content of the contract must specify certain fundamental elements such as the function, the working time rate, remuneration, working hours and place of performance. Other clauses may be negotiated: probation period, confidentiality, non-competition or teleworking.
A Swiss particularity lies in the principle of freedom of contract, which allows the parties to freely negotiate working conditions, subject to the mandatory provisions of the law. This flexibility is accompanied, however, by legal safeguards designed to protect the party considered economically more vulnerable.
Probation Period and Special Clauses
The probation period, fixed by default at one month under art. 335b CO, may be extended to three months by written agreement. During this phase, the notice period is seven days. This period allows the employer to assess the collaborator's skills and the latter to appreciate their professional environment.
The non-competition clause (art. 340 CO) must be limited in time, scope and subject matter to be valid. Compensation may be provided but is not mandatory. This clause does not apply if the employer terminates the contract without justification.
Working Hours, Remuneration and Leave
The statutory working time varies by sector. The Employment Act fixes a limit of 45 hours per week for industrial, administrative and technical staff, and 50 hours for other categories of workers. Collective agreements may provide for shorter durations.
Overtime, governed by art. 321c CO, must be compensated by leave of equal duration or remunerated with a minimum supplement of 25%, unless agreed otherwise. The employer may require overtime insofar as the collaborator is able to perform it and the rules of good faith allow for it to be demanded.
As regards remuneration, Switzerland is distinguished by the absence of a statutory minimum wage at federal level (except for a few cantons such as Geneva, Neuchâtel or Jura). Salary is therefore freely negotiated, subject to the minima provided for in certain collective agreements. The principle of non-discrimination in pay between men and women is enshrined in the Constitution and the Gender Equality Act.
Leave and Absence Rights
Swiss law guarantees:
- Minimum 4 weeks' annual leave (5 weeks for those under 20)
- 9 official public holidays (varying by canton)
- Protection in case of illness: salary payment for a limited period according to the Bernese, Basel or Zurich scale
- Maternity leave of 14 weeks at 80% of salary
- Paternity leave of 2 weeks at 80% of salary (new since 2021)
- Special leave for personal events (marriage, death, moving)
Unjustified absences may constitute grounds for dismissal, while the employer must protect the physical and mental health of their employees by taking the necessary measures against overwork or harassment.
Protection against Dismissal and End of Employment
The Swiss system is characterised by relative flexibility in terminating employment, while providing various protections for employees. The principle of freedom of termination allows each party to end the contract by observing the statutory or contractual notice periods.
For an open-ended contract, the notice periods are:
- 7 days during the probation period
- 1 month during the first year of service
- 2 months from the second to the ninth year
- 3 months from the tenth year onwards
These periods may be modified by written agreement, without being able to be less than one month (except in collective agreements). Termination must comply with good faith and must not be abusive.
Swiss law provides for protection periods during which the employer may not dismiss:
- Illness or accident: 30 days during the first year of service, 90 days from the second to the fifth year, 180 days thereafter
- Pregnancy and 16 weeks after childbirth
- Military or civilian service
A dismissal given during these periods is void. If given before but the notice period has not expired, it is suspended and resumes at the end of the protection period.
Wrongful Dismissal and Summary Termination
The law classifies certain dismissals as abusive, including those motivated by:
- Trade union membership
- Exercise of a constitutional right
- A good-faith claim against the employer
- Reporting of illegal acts (whistleblowing)
In case of wrongful dismissal, the employee must file a written objection before the end of the notice period, then seize the tribunal within 180 days. Compensation may reach six months' salary.
Summary termination for good cause (art. 337 CO) remains exceptional. It presupposes circumstances rendering continuation of the employment unbearable, such as a serious breach of contract or a criminal act. An unjustified summary termination exposes the employer to paying what the employee would have earned until the ordinary expiry date, plus compensation of up to six months' salary.
Employer's Specific Obligations on Health and Safety
Protecting the health and safety of workers constitutes a priority legal obligation for any employer in Switzerland. This responsibility revolves around the Employment Act and its ordinances, as well as the Accident Insurance Act.
The employer must take all necessary measures to:
- Arrange workplaces conforming to safety standards
- Prevent occupational accidents
- Limit exposure to physical, chemical and biological risks
- Adapt workplace ergonomics
- Protect against psychosocial risks (stress, burnout, harassment)
SUVA (National Accident Insurance Fund) and cantonal labour inspectorates ensure compliance with these obligations. Companies must carry out a risk analysis and put in place a safety management system adapted to their size and sector.
Comparative Table: Essential Rights and Obligations
| Domain | Employer's rights/obligations | Employee's rights/obligations |
|---|---|---|
| Salary | Pay the agreed salary on time | Right to salary; comply with performance conditions |
| Working time | Comply with legal maxima (45/50h); pay overtime | Work the agreed hours; report absences |
| Health and safety | Provide a compliant workplace (art. 6 EA, art. 328 CO) | Comply with safety instructions |
| Leave | Grant min. 4 weeks/year; fix dates in consultation | Take holidays; report sick absences |
| Loyalty | Respect employee's personality (art. 328 CO) | Duty of loyalty; prohibition on competition (art. 321a CO) |
| Termination | Observe notice periods and protection periods | Observe notice periods; not abandon post |
| Employment reference | Issue within a reasonable period (art. 330a CO) | May request at any time (10-year limitation period) |
Frequently Asked Questions on Rights and Obligations at Work
Can the employer monitor employees' electronic communications?
Monitoring of electronic communications is strictly regulated. The employer may not monitor private emails. Monitoring of professional tools is possible but must be proportionate, announced in the internal regulations and comply with the Data Protection Act. Permanent monitoring targeted at an individual is generally prohibited.
What are the employer's obligations in case of employee illness?
The employer must pay the salary during illness according to the Bernese scale (3 weeks in the first year, increasing with seniority) or loss of earnings insurance. They may not dismiss during the protection periods (30 to 180 days depending on seniority). They must adapt the position where possible on the employee's return.
Can an employee refuse to work overtime?
The employer may require reasonable overtime if the situation demands it (art. 321c CO). The employee may refuse if the hours are excessive, incompatible with their health, family obligations, or contrary to good faith. Overtime must be compensated in time or remunerated at +25%.
When must the employer inform employees of collective redundancy?
Art. 335f CO obliges the employer to consult the staff representatives and inform the cantonal employment office before any collective redundancy (at least 10 employees in a company of 100 to 299 employees, or 10% of the workforce for larger companies). A consultation period of 30 days is provided.