Additional Matters concerning a Contract of Employment

The entitlement of an employer to give instructions

Definition

Under Art. 321d, Para. 1 of the ‘CoO’, an employer has a statutory entitlement to give instructions to an employee concerning the conduct of the assigned work and behaviour within the business. A subordination relationship thus obtains between employer and employee. Instructions include general guidelines to all employees as well as specific instructions to an individual employee.

Content

Instructions explain more closely the duty of an employee to provide labour and the duty of fidelity. An employer can for example determine what work is to be carried out, and when and where. In addition an employer can impose regulations on an employee, as to how an item of work is to be carried out, and an employer can also lay down a code of behaviour, i.e. regulations concerning working hours, work clothing, healthcare, etc..

Limitations

  • Statutory limitations
    • Instructions on behaviour out of working hours should not exceed the principles of the duty of fidelity (comp. Art. 321a, Para. 4 of the ‘CoO’).
    • Instructions are to be based upon the justified interests of an employer, otherwise such infringe the principles of good faith (comp. Art. 2 of the Swiss Civil Law Code (‘ZGB – Zivilgesetzbuch’).
    • Instructions may not infringe the principles of the protection of the personage (comp. Art. 328 of the ‘CoO’).
  • Contractual limitations
    • Instructions are to correspond with a contract of employment, unless such have to do with extraordinary circumstances.

Entitlement to the results of the labour

There exists the principle that entitlement to the results of the labour remains with the employer. In this regard, Art. 321b, Para. 2 of the ‘CoO’ also statutorily requires that an employee is immediately to relinquish the results of contractual work carried out in the exercise of his or her labour. The same principle exists for rights to- inventions and -designs under Art. 332, Para. 1 of the ‘CoO’.