Swiss Employment Law: Contract, Dismissal, Protection

> Employment Contract and Formation

In Switzerland, an employment contract is formed as soon as there is agreement on the essential elements: parties, function and salary. Written form is not mandatory but strongly recommended to avoid any subsequent dispute. The employer must nevertheless provide a written document stating at minimum: names of the parties, start date, function, salary and weekly working hours.

Probation period: Maximum duration of 3 months (1 month if not mentioned in the contract). During this period, either party may terminate the contract with 7 days' notice. This period allows both parties to verify that the collaboration meets their expectations.

Types of contracts: Permanent contract (most common), fixed-term contract (which automatically ends on the agreed date without requiring termination), temporary contract (through a placement agency with triangular relationship). A fixed-term contract may only be terminated early if it contains a clause allowing this or by mutual agreement.

Main obligations: The employee must perform the agreed work with care and loyalty, follow the employer's instructions, respect professional secrecy and non-competition if provided. The employer must pay the salary, protect the worker's health, respect their personality and allow them to take their statutory holidays.

> Salary, Working Time and Holidays

Salary: No federal minimum wage in Switzerland, but certain cantons (Geneva, Neuchâtel, Jura, Basel-City, Ticino) and collective agreements set one. The 13th month salary is customary but not mandatory unless provided in the contract or CLA. Overtime must be compensated with equivalent time off increased by 25%, or paid with the same increase if agreed.

Working time: Maximum 45 hours per week for office, technical and retail employees. Maximum 50 hours for others. Overtime capped annually: 170 hours (45h/week) and 140 hours (50h/week). Mandatory breaks: 15 minutes if work > 5h30, 30 minutes if > 7h, 1 hour if > 9h. Daily rest of 11 consecutive hours, weekly rest of 35 hours (usually Sunday).

Holidays: Legal minimum of 4 weeks per year (5 weeks up to age 20). Holidays must be taken in kind during the employment relationship; compensation is only possible at the end of the relationship. Carryover limited to the following year in principle. The employer sets the dates after consulting the worker, taking into account the company's needs and the worker's wishes.

Public holidays: Variable according to cantons. Generally 8 to 13 days per year. If the worker must work on a public holiday, they are entitled to a salary supplement (usually 50%) or a compensatory day off, according to custom or contract.

> Termination and Dismissal

Legal notice periods: After the probation period: 1 month for the end of a month during the first year of service, 2 months during the 2nd to 9th year, 3 months from the 10th year onwards. The contract or CLA may provide for longer periods. Notice must be given in writing (written form mandatory for the employer in certain cases).

Immediate termination: Possible only for serious grounds making continuation of the employment relationship immediately unbearable: theft, serious breach of secrecy, persistent refusal to work, harassment. The party terminating immediately must be able to prove the just grounds. In case of unjustified immediate termination, the other party is entitled to compensation equivalent to what they would have earned if the contract had ended at the end of the ordinary notice period.

Abusive dismissal: Prohibited to dismiss for discriminatory reasons (sex, age, origin, religion, political opinions, sexual orientation), during the exercise of constitutional rights (voting rights, military service), or in retaliation (after reporting irregularities). Abusive dismissal is not void but gives right to compensation of up to 6 months' salary.

Special protection: Dismissal void during: pregnancy and 16 weeks after childbirth, illness or accident (30 days in the 1st year of service, progressively up to 180 days from the 6th year), military/civil/civil defense service and 4 weeks after, humanitarian aid abroad (Confederation delegation) and variable duration after according to seniority.

> Worker Protection and Legal Remedies

Equality and non-discrimination: The Gender Equality Act (LEg) prohibits any direct or indirect discrimination based on sex, particularly regarding salary (principle "equal pay for equal work"). The employer must guarantee equal treatment between men and women and prevent sexual harassment. Companies with more than 100 employees: obligation to carry out an equal pay analysis every 4 years.

Protection of personality: The employer must protect and respect the worker's personality in employment relationships, their health and morality. Prohibition of psychological harassment (mobbing), sexual harassment and any infringement of dignity. The employer must take preventive measures and intervene quickly in case of complaint.

Legal remedies: In case of dispute, procedure: 1) Attempt at amicable resolution with the employer, 2) Referral to the conciliation authority (mandatory attempt in most cantons), 3) Referral to the labor court or civil court with authorization to proceed. Simplified procedure for disputes up to CHF 30,000 in most cantons. First instance generally free or inexpensive.

Limitation periods: Claims for payment of salary: 5 years. Other claims arising from the employment contract: 10 years. It is crucial to act quickly in case of dispute to preserve your rights and gather the necessary evidence.

> Illness, Accident and Social Insurance

Salary payment in case of illness: In the absence of daily sickness benefit insurance (DSB), the employer must pay the salary according to the Bern scale (art. 324a CO): 1st year of service: 3 weeks at 100%, 2nd year: 1 month, 3rd-4th year: 2 months, 5th-9th year: 3 months, 10th-14th year: 4 months, from 15 years: 5-6 months. These periods apply per year of service and for the same cause. Several distinct illnesses give right to new periods.

Daily sickness benefit insurance (DSB): If the employer has taken out collective DSB, it generally pays 80% of salary for 720 days over 900 consecutive days (according to contract). The contract may provide for a waiting period of 2 to 30 days. The employer must inform the worker of the existence and conditions of this insurance. In case of DSB, the legal obligation to pay salary is suspended, but the employer often supplements the difference to reach 100%.

Accident insurance (LAA): Mandatory for all employees from 8h/week. The employer pays occupational accident insurance (OAI), the worker pays non-occupational accident insurance (NOAI) by salary deduction. LAA benefits: medical care, daily allowances (80% of insured salary from the 3rd day), disability pension if permanent incapacity, survivors' pension in case of death. LAA takes precedence over the obligation to pay salary in case of accident.

Maternity and paternity: Maternity leave: 14 weeks (98 days) with maternity allowance of 80% of salary (max. CHF 220/day) paid by income compensation (APG). Protection against dismissal extends until 16 weeks after childbirth. Paternity leave: 10 days (2 weeks) to be taken within 6 months of birth, compensated at 80% by APG. Some CLAs or employers provide more favorable conditions.

Military service and civil defense: The worker on military, civil or civil defense service receives an income compensation allowance (APG) of 80% of salary (max. CHF 220/day for military service, CHF 275/day for civil service). The employer has no obligation to pay salary, except by contractual provision or contrary CLA. Protection against dismissal during service and for 4 weeks after. Service time counts towards seniority.

> Special Contract Clauses

Non-competition clause: Valid only if provided in writing, limited in time (max. 3 years in principle, sometimes accepted up to 5 years for senior executives), geographically and by sector of activity limited, and if the worker has access to clientele or business secrets. The judge may reduce or remove a disproportionate clause. Violation: damages up to the agreed amount (max. annual salary) and/or injunction to cease competing activity.

Professional secrecy and confidentiality: Legal obligation of the worker to keep secret confidential facts of which they have knowledge (art. 321a CO): manufacturing secrets, processes, clientele, commercial data. This obligation continues after the end of the contract. Breach of secrecy: possible immediate dismissal, damages, even criminal sanctions depending on the nature of the secret (business secrets, sensitive personal data).

Prohibition to work for a third party: The worker may not carry out paid activity for a third party without the employer's agreement if this activity violates their duty of loyalty or affects their ability to perform their work (art. 321a CO). Non-competing ancillary activity: generally accepted if it does not hinder execution of the main contract. Multiple employment: possible but maximum working hours must be respected overall.

Training and restitution clause: If the employer finances expensive training, they may provide for a restitution clause in case of early departure. Conditions: substantial training (significant value and duration), proportionate and degressive clause over time. Example: training of CHF 20,000 with commitment to stay 3 years, decreasing by 1/36th per month. The judge may reduce the amount if disproportionate or in case of dismissal by the employer.

Abusive clauses and nullity: Clauses contrary to mandatory provisions of the CO or excessively restrictive are void: advance waiver of rights arising from mandatory provisions, excessive penalty clauses, disproportionate non-competition clauses. The rest of the contract remains valid. In case of doubt about the interpretation of a clause, it is interpreted in favor of the worker (principle of favor).

> Collective Labor Agreements (CLA)

Nature and application of CLAs: A CLA is an agreement between employer organizations and trade unions setting working conditions more favorable than the law: minimum wages, reduced working hours, additional holidays, travel allowances, professional classifications. CLAs apply to members of signatory organizations. CLAs declared universally binding apply to all companies and workers in the sector concerned in a given region.

Sectors covered by CLA: Construction (building and civil engineering CLA), hotel-restaurant industry (Gastrosuisse CLA), retail trade, MEM industry (machinery, electrical equipment, metallurgy), banks, health (hospitals, nursing homes), public transport, cleaning. Consult professional association websites or the State Secretariat for Economic Affairs (SECO) to verify the existence of a CLA applicable to your sector.

Typical CLA content: Minimum wages by professional category and seniority, mandatory 13th month salary (often 13.5 or 14 months), extended holidays (5 weeks standard), overtime with 25% or 50% surcharge, meal and travel allowances, seniority bonuses, continuing education, extended notice periods (up to 6 months), contributions to a pension fund, joint supervisory and arbitration commissions.

Control and sanctions: Professional joint commissions (PJC) monitor the application of CLAs. In case of violation (wage undercutting, non-compliance with conditions), possible sanctions: contractual fines, exclusion from public procurement, reporting to authorities. The worker may demand application of the CLA before the court. CLA provisions prevail over the individual contract if they are more favorable to the worker.

> When to Consult a Lawyer?

Situations requiring legal advice: Abusive or discriminatory dismissal, contested immediate dismissal, documented moral or sexual harassment, non-payment of salary or overtime, dispute over the validity of a non-competition clause, dispute over calculation of severance pay, work accident with disputed liability, wage discrimination based on sex (LEg), substantial unilateral contract modification, conflict over application of a CLA.

Legal protection: Many household insurance policies include legal protection covering employment law disputes. Check your insurance policy before hiring a lawyer. Trade unions often offer free or reduced-price legal advice to their members, as well as representation in case of dispute. Some cantons offer free or low-cost legal consultations for people with modest incomes.

Official resources: State Secretariat for Economic Affairs (SECO): information on employment law, CLAs, labor inspections. Cantonal employment and labor offices: mediation, information on applicable CLAs. Cantonal conciliation commissions: mandatory conciliation attempt before any legal action. Trade unions and professional associations: advice, information, representation. Consult www.admin.ch and www.seco.admin.ch for legal texts and official guidelines.

Act quickly: Employment law deadlines are short and mandatory: 30 days to contest an abusive dismissal, 30 days to contest dismissal at an inopportune time, 30 days to refer to the conciliation authority after notice. Do not miss these deadlines, as you would permanently lose your rights. Systematically document all events (letters, emails, witnesses) and keep all documents (contract, pay slips, medical certificates, correspondence).