Duty of care

Definition

The duty of welfare is, in general not regulated by the statute law. The duty can however be described as the duty of an employer to uphold and protect the justified interests of an employee. The matter has principally to do with duties of desistance. An employer is to make every effort to desist from everything which could be detrimental to the justified interests of an employee. The more important duties in this respect are as follows:

The protection of the personality rights

Under Art. 328, Para. 1 of the ‘CoO’, an employer is to respect and protect the personality rights of an employee, to take due consideration of the health of an employee and to ensure the upholding of morality. An employer is to desist from all unjustified interventions in the personal assets of an employee (life, physical and psychical integrity, freedom, honour and personal privacy). Such include:

  • protection of health;
  • protection against sexual harassment;
  • protection against mobbing.

Free time, paid vacation and leave

Free time off work

Under Art. 329, Para. 1 of the ‘CoO’, an employer is to grant an employee one free day off work each week, being the Sunday as a rule. Under the statute law, there is thus no claim to a five day working week.

There is no statutory claim to remuneration for free time off work. However, in cases of employees with weekly, monthly or annual remuneration, the assertion of such a claim is usually disregarded. Free time off work includes the following:

  • public holidays;
  • important personal matters (e.g. the birth of a child, a wedding, the removal of the dwelling, examinations, etc. but only when such is not possible outside of working hours);
  • applications for a new position (as a rule, a half working day per week).

Paid vacation

Under Art. 329a, Para. 1 of the ‘CoO’, an employer is to grant an employee at least five weeks annual paid vacation up to the completion of the 20th year of age, and four weeks thereafter. Para. 2 stipulates that paid vacation during an incomplete year of employment is to be appropriately adjusted pro rate temporis.
The point in time to take paid vacation is essentially to be fixed by an employer, but an employer is to take due consideration of the wishes of an employee (comp. Art. 329c, Para. 2 of the ‘CoO’). Paid vacation as a rule is to be granted during the relative year of employment and two consecutive weeks are to be taken at one time. In addition, the following aspects should be mentioned:

  • Curtailment: Under Art. 329b, Para. 1 of the ‘CoO’, an employer is entitled to curtail the paid vacation (by 1/12th) if an employee is absent from work for more than one month due to his or her own culpability during any one year of employment. This also includes absences for sickness, accident, or compliance with statutory duties, etc., but with a less degree of curtailment (one month per year of employment would not come into consideration in such cases (comp. Art. 329b,Para. 2))
  • Remuneration: an employer is required to remunerate an employee for the entire time period of absence taken for vacation (comp. Art. 329d, Para. 1 of the ‘CoO’). In addition, paid vacation may not be replaced by a monetary substitute in lieu of paid vacation (comp. Art. 329d, Para. 2 of the ‘CoO’). Upon notice given to terminate a contract of employment however, paid vacation not taken is to be remunerated monetarily.

Leave

Leave covers time off work for youth work outside of the occupational training institution (comp. Art. 329e of the ‘CoO’) and maternity leave (comp. Art. 329f of the ‘CoO’).

The protection of assets

An employer has also statutory duties to serve the protection of the assets of an employee.

Working tools and materials

Under Art. 327, Para. 1 of the ‘CoO’, an employer is to equip an employee with working tools and materials necessary for carrying out the work assigned, unless anything to the contrary is agreed.

Outlay (expenses)

Under Art. 327a, Para. 1 of the ‘CoO’, an employer is to reimburse an employee for all the necessary outlay incurred in carrying out the assigned work. Such include for example:

  • travelling expenses;
  • lodging at an external work site;
  • board at an external work site;
  • advanced training is only to be reimbursed, when an employer requires the advanced training of an employee.

Not included in the foregoing are travelling expenses to and from the usual place of work and the costs of removal of a dwelling.

Data protection

Under Art. 328b of the ‘CoO’, an employer may only process details of an employee when such are required for the employment or for the establishing of a contract of employment. Personal details defined in the Art. 3 of the Swiss Data Protection Legislation (‘DSG – Datenschutzgesetz’) are those referring to a particular person, notwithstanding their nature or the data carrier involved. Any other form of processing is statutorily deemed to be an infringement of personal freedoms. The principles behind data processing are to be found in Arts. 4 to 7 of the foregoing Data Protection Legislation.

The equality of the sexes

Under Art. 3 of the Swiss Equality of the Sexes Legislation ( ‘GlG –Gleichstellungsgesetz’), an employee may not be discriminated against because of his or her sex, neither directly (discrimination for membership of a particular sex) nor indirectly (discrimination on the basis of a neutral measure, which seeks practically to belittle one sex against the other).

The issuing of a testimonial and a references

comp. www.arbeitszeugnis.ch

The issuing of a testimonial

Under Art. 330a, Para. 1 of the ‘CoO’, an employee has a claim to a (written) testimonial, which informs on the type and duration of the employment as well as on performance and behaviour. Essentially, a testimonial can be claimed at any time. For the issuing of a testimonial before notice is given to terminate a contract of employment (a so called interim testimonial), a justified interest is to be shown, for example when changing to a new superior.

Upon the specific request of an employee, an employer is also to issue a confirmation of employment in addition to- or instead of a testimonial (comp. Art. 330a, Para. 2 of the ‘CoO’). It is of course obvious that a testimonial is to be clearly and truthfully defined.

Reference information

An employer is under a statutory duty to provide a reference on the request of a third party concerning an employee, provided that the relative employee gives permission.

Duty to provide information

Under (the new) Art. 330b of the ‘CoO’, an employer is to inform an employee in writing of the names of the contractual parties, the date of the commencement of the employment, the functions of the relative employee, the remuneration and the weekly working hours, when the employment has a duration of an indeterminate time period or is contracted for more than one month. Any subsequent alterations or supplementations are also to be informed in writing.

Sanctions

In case of an infringement of the duty of welfare, the following remedies are available:

  • termination (without time period of notice, only in cases of grievous infringements);
  • the withholding of the labour (the provision of the labour should not be capable of reasonable expectation because of an infringement);
  • duties of indemnification and reparation;
  • enforcement of compliance before the court.