While other European countries such as Germany, Spain, Italy and France have become less attractive to immigrants coming to the old continent, Switzerland is the only European country to improve its position in the top ten of the popular Global Talent Study 2020 ranking.
Faced with the fact that all other European countries, such as Germany, Spain, Italy and France, have become less attractive to immigrants, Switzerland is the only European country to improve its position in the top ten of the Global Talent Study 2020 ranking. The Swiss Federation moved up one place, overtaking France and thus becoming the seventh most popular country among foreign workers.
The attractiveness of Switzerland as a country for workers should come as no surprise. This is because wages and purchasing power are high, and taxation of personal income is relatively low. At the same time, the Swiss economy suffers from a shortage of specialists in many sectors of the economy, and in particular the recent coronavirus pandemic has shown how serious the shortage of a specialized working class is in some areas of the country's operation.
Another reason that makes Switzerland so attractive to employers is that it has one of the most liberal employment law in the world. The aim of this article is to pay special attention to three selected features of Swiss employment law, which are best considered before signing a Swiss employment contract.
1. High level of freedom to terminate employment contracts
Simply put, the prevailing principle in Swiss labor law is that dismissal is always allowed, unless for some specific reason in exceptional circumstances it is prohibited and therefore invalid (e.g. accident). It is worth adding here that in Switzerland there is also no complete freedom of dismissal. For example, statutory minimum notice periods for employment contracts have been established that exceed the European average (one month in the first year of employment, two months in the second to ninth year of employment and three months thereafter).
Despite the widespread freedom to terminate an employment contract, such termination may be considered unlawful in Switzerland. In Article 336 CO, the Act provides for a non-exhaustive list of cases in which the termination is abusive (this is the case, for example, if it is due to a person's attribute, such as religion or age). It is important to note that termination of an employment contract may also violate the principle of good faith in other ways and thus still constitute an abusive act. Even in the case of unlawful termination of employment, there is no right to reinstatement, and the dismissal is effective despite the fact that it is unlawful. In such a case, the dismissed employee claims compensation in the amount of up to six months' remuneration under the employment contract (which is rather rare in this amount).
The only exception to the rule described above is the Gender Equality Act, the main objective of which is to promote real equality between women and men. This legislation allows temporary reinstatement for the duration of the proceedings (Article 10GEA).
However, unlike most European legal systems, it is possible to terminate an employment contract under Swiss law without any formal requirements, unless otherwise agreed. Therefore, in the scope of such cases, the notice may also be effectively submitted orally, by e-mail or even via instant messenger (for example, Whatsapp). However, for reasons of evidence, it is highly recommended that the employer always gives the employee notice in writing or in the presence of witnesses.
In addition, the termination of the employment contract may also take place without giving any reason by the employer terminating the contract. However, an employee who has received notice of termination of employment may, under Swiss law, require the employer to provide written reasons for the termination in order to establish any indications of potential abuse.
Liberal employment law regulations in Switzerland are an important location advantage, as in some cases these regulations provide jobseekers with more opportunities. Thanks to this, the employer, when hiring an employee, does not have to be completely sure whether, after the trial period, the employee will still fit the company in which he was employed.
2. Prohibition of the employee's competitive activity
The labor market in the territory of the Swiss Federation is exceptionally flexible compared to the EU thanks to liberal legislation that allows companies to hire or dismiss employees in a short time and without complications, depending on immediate economic needs.
In this context, it is worth noting that even a properly concluded non-competition clause, as a rule, expires when the employment relationship is terminated by the employer. The only exceptions to the rule described above are cases where the employer gives the employee a valid reason for termination. Then a contractual non-compete clause applies. Similarly to the first situation, the non-competition clause expires if the employee terminates the contract for a justified reason for which the employer is responsible.
A characteristic element of Swiss labor law regarding the non-compete clause is that its provisions can be effectively agreed only under certain conditions and only in writing. As a rule, non-competition clauses are formulated in an extremely restrictive manner and their strict observance often, unfortunately, leads to the fact that the employee is prohibited from performing work. For this reason, it is highly advisable in the event of a dispute to check whether the non-competition clause meets the statutory requirements of material, local and time restrictions. The last thing is that in the absence of linking the non-competition clause with a contractual penalty and/or an effective performance clause, the non-competition clause is usually ineffective. It is then difficult for the employer to prove that he suffered damage and in what amount.
In all cases, it is recommended that when negotiating the provisions of the employment contract, the employee should carefully read the competition clause and, consequently, negotiate compensation for the non-competition clause or shorten its duration.
3. The essence of an employment reference letter
Another characteristic element of the Swiss labor market is the letter of reference from the previous employer, which is more important in Switzerland than abroad, especially in the EU. When entering into an employment contract in Switzerland, a letter of reference from a previous employer is still generally considered more important than a CV.
Due to the above practice, it is important to know a few rules that apply in the Swiss employment sector. Under Swiss labor law, an employee may at any time request the employer to draw up a letter of reference, which sets out the nature and duration of the employment contract, as well as the performance and behavior of the employee. Alternatively, the employee may request only a so-called confirmation of employment, which in essence is limited to information about the nature and duration of the employee's services. In accordance with Swiss law, the Interim Report is issued during employment, while the Final Report is issued after the termination of work-related services. The important point here is that the employer's final reference letter must adequately reflect the total duration of the employee's activity at work.
Both final and partial reference letters must be truthful and complete, but should in no way hinder the employee's career advancement. For this reason, these documents must be worded in a benevolent manner. Usually, the limit of kindness in the process of editing such a letter is the risk of the employer's liability for false information. In this regard, it is worth mentioning in this regard that an incapacity may or must be listed on an appeal if it had a significant impact on performance and/or behavior. This information should also be listed if it has led to dismissal or if the duration of the incapacity for work would give the reader a false impression of actual work experience and work experience.
When examining the content of a reference letter from a previous employer, in addition to the general impression made by the content, special attention should be paid to whether it contained all relevant information that could provide the potential future employer with specific information on the provision of labor services, main tasks resulting from employment, the employee's performance and merit, and beyond that, his or her conduct.
EA's team of employment law experts will be happy to advise you on all matters related to relocating your center of vital interests to Switzerland and regardless of legal issues. We look forward to your return contact.
