The Swiss Employment Contract: Legal Foundations
General
In contrast to other countries, the Swiss system is characterized by a liberal approach to the employment law. Swiss law allows either the employer or the employee to terminate the employment contract without cause.
In most cases, the law does not stipulate any formal requirements for the conclusion of an employment contract (art. 320 CO). It is therefore possible to conclude an employment contract orally, or in writing or even conclusive acts.
Characteristics of Employment Contracts in Switzerland
In Switzerland, an employment contract includes 4 features:
- 1) The worker undertakes to work, i.e. to carry out an activity
- 2) The worker carries out this activity for a period of time (fixed or indefinite).
- 3) The worker acts in the service of the employer, in a relationship of subordination.
- 4) The employee receives a salary
The subordinate relationship is the essential distinguishing criterion of an employment contract from other contracts. In the event of a dispute over the classification of a contract, the judge will carefully analyze whether there is a relationship of subordination between the contracting parties.
This problem often arises when it comes to distinguishing between a contract of agency and a contract of employment. This distinction is very important in practice, as the employment contract may be subject to numerous rules designed to protect the employee (e.g. notice period to terminate the contract, minimum wage, Collective Labour Agreementsetc.).
What's more, the self-employed agent alone pays 100 % of his social security contributions, whereas in principle the employer and the employee bear 50 % of the payment of these charges.
Termination of a Swiss Employment Contract
There are two types of employment contracts in Switzerland: permanent and temporary. fixed term and indeterminate.
Termination of an open-ended contract
When concluded for an indefinite period, the contract may be terminated by either party within the legal or contractual time limits, without any particular reason (art. 335 of the Swiss Code of Obligations). The notice period will depend on the employee's length of service with the company.
The termination of an employment contract in Switzerland must comply with the following points:
- A notice period (depending on seniority)
- The reason for termination must not be unreasonable
- Notice must not be given at an inopportune time (e.g. sick leave, military service, etc.).
Termination of a Fixed-Term Contract
A fixed-term contract can only be terminated for "just cause". According to the Swiss Code of Obligations (CO), just cause includes all circumstances which, in accordance with the rules of good faith, do not allow the person giving notice to be required to perform his or her obligations under the contract. continuation employment relationships.
The parties must therefore reach the end of the term of the contract, in order to separate or terminate it in advance by mutual agreement (art. 334 CO).
Termination of an Employment Contract
Indefinite Duration
In principle, the employment contract may be terminated subject to a notice period of seven days during the trial period (art. 335b CO). Unless otherwise stipulated, the trial period corresponds to the first month of employment, and may in no case exceed three months (art. 335b CO).
Secondly, the employment contract can be terminated subject to a notice period ofone month during the first year service two months between the second and ninth year of service and three months (art. 335c CO).
A notice period of less than one month is only permitted during the first year of service (art. 335c para. 2 CO).
Fixed Term
Unless renewed, the fixed-term employment contract may not be terminated before the end date (except for just cause or by mutual agreement between employer and employee).
In addition, if the parties continue their working relationship after the period agreed in the fixed-term contract, the law presumes that the contract will henceforth be open-ended.
Also, if the contract is renewed several times for a fixed term (e.g. two or three times), judges may consider that the contract has become an open-ended contract as well.
Minimum Wage
Swiss law does not provide for a minimum wage at federal level.
The canton of Geneva currently sets a minimum gross hourly wage of CHF 24.32 of the hour. Look at collective bargaining agreements concluded in specific sectors (e.g. construction, catering or cleaning) provide for minimum wages and specific working conditions.
Vacations
Swiss law provides for a minimum 4 weeks and 5 weeks for employees under the age of 20.
When employees are paid by the hour, their vacation entitlement can be replaced by an increase in their remuneration.
Work Periods
In principle, the maximum weekly duration is 45 hours for workers in industrial companies, office, technical and sales staff in large retail companies, and of 50 hours for all other workers (article 9 LTr, article 2 OLT 1).
Overtime
Overtime is defined as working more than the hours stipulated in your contract. However, it must not exceed the maximum working hours mentioned above.
Overtime can be worked at the request of either the employer or the employee. However, certain conditions must be met:
- Overtime must be justified
- They must not lead to physical or mental overwork
- Working hours and daily rest periods must be respected
Collective Labor Agreements (CLA)
A Collective Labor Agreement (CLA) is an agreement between employer and employee unions, the aim of which is to regulate working conditions and relations between the parties (Art. 356 to 358 CO).
Collective bargaining agreements and standard employment contracts concern sectors in which it is considered that the worker should be protected. These include sectors such as construction, hotels and restaurants, domestic service, etc.
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How do I Draw Up an Employment Contract in Switzerland?
To draw up an employment contract in Switzerland, you'll need to comply with current legislation and check whether a collective bargaining agreement exists.
- 1) Essential elements of the contract
- Job description
- Subordination relationship
- Fixed-term or indefinite-term contract
- Salary and payment terms
- 2) Collecting employee information
- Name of employer and employee
- Contract start date
- Job description
- Number of working hours per week
- 3) Formalization
- Oral or written
- In writing if required by the sector (e.g. apprentice)
Frequently asked questions about employment contracts in Switzerland
In which part of the Code of Obligations is the employment contract found?
The employment contract is governed by articles 319 to 362 of the French Swiss Code of Obligations (CO).
How can I prove an oral employment contract in Switzerland?
Proving an oral employment contract in Switzerland can be complex. However, you can try to prove the existence of your employment contract by following our recommendations.
- Collect testimonials colleagues or superiors with whom you have worked
- Collect evidencesuch as pay slips, proof of payment or correspondence with the employer (SMS, letters, e-mails)
- Keep proof that you have received work equipmentsuch as a computer, telephone or work clothes
How is an employment contract concluded in Switzerland?
In Switzerland, employment contracts can be concluded in a number of different ways:
Written formAlthough not required by law, an employment contract can be drawn up in writing (strongly recommended).
Oral formThe employment contract can be agreed verbally between the two parties.
Conclusive actionsEven without an explicit oral or written agreement, the conclusion of an employment contract can be inferred from conclusive acts. This means that if the parties' actions demonstrate that an employment relationship exists, a contract is deemed to be in place.
How do I terminate a fixed-term employment contract in Switzerland?
In principle, it is not possible to terminate a fixed-term employment contract in Switzerland.
However, a fixed-term contract can be terminated early in two cases:
- There are "just reasons". According to the Swiss Code of Obligations (CO), just cause is any circumstance which, according to the rules of good faith, does not allow the person giving notice to be required to continue the employment relationship.
- If both parties (employer and employee) agree, they can also terminate the contract in advance of a mutual agreement.
How do I terminate an employment contract?
Employment contracts can be terminated in the following ways.
Termination of an open-ended contract in Switzerland :
- Can be terminated by employer or employee without specific reason.
- Notice periods :
- 7 days during the trial period.
- 1 month for the 1st year of service.
- 2 months for years 2 to 9.
- 3 months after 10 years' service.
Termination of a fixed-term contract :
- Termination before end only for "just cause" or mutual agreement.
- If the contract continues after the end date, it becomes indefinite.
What is an amendment to an employment contract?
Sample Swiss employment contract
Swiss employment contract template
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