At a glance: hiring employees in Switzerland

Background information on applicants

Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?

If the applicant is in an ongoing employment relationship, the current employer may not be contacted by the potential employer without the applicant’s consent. In principle, references may only be obtained with the applicant’s consent and former employers may not say more than what is already stated in the job reference. However, clarifications regarding the job reference are permitted.

If no reference is available, the former employer is not obliged to confirm that an employment relationship existed between it and the applicant. It is also questionable to what extent the inclusion of personal information from the internet, especially from social media platforms, during the application procedure is permissible. Some scholars opine that employers must abstain from these practices, while others think that employers are under an obligation to confront the applicant with online search results.

Although the data that can be found on the internet is publicly accessible, this does not release the employer from the obligation to limit the processing of personal information relevant to the issues of suitability and feasibility of an employment relationship (article 328(b) of the Code of Obligations). The consent of the applicant is always required if external graphological expertise is sought or a psychological aptitude test is to be carried out. Here, too, the question of relevance to the position to be filled arises.

If external specialists are commissioned to conduct a background check, they must always act responsibly, cautiously and with respect for the privacy of the candidates.

Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?

Applicants must answer questions relating to health conditions truthfully if the data is necessary to assess an applicant’s eligibility for the position. If necessary for the job, the employer may also have the applicant’s suitability for the employment relationship from a health point of view examined by a doctor. If a medical examination takes place, the doctor is bound by the duty of confidentiality. He or she may only make statements to the employer regarding the suitability of the applicant for the position to be filled. However, he or she may not pass on any diagnosis to the employer. This also applies if the medical examination is carried out by the company doctor.

If medical data is necessary for a final assessment of an applicant, an employer may refrain from hiring if the examination is refused.

Are there any restrictions or prohibitions against drug and alcohol testing of applicants?

Applicants can be requested to undergo drug and alcohol screening tests if the results of such tests are necessary to assess his or her eligibility for the job. The consent of the data subject is required for each test owing to the lack of a legal basis. If the applicant does not give his or her consent, he or she cannot be forced to take the test. If there is an overriding security interest, an employer can refuse to employ an applicant who does not wish to be tested.

Hiring of employees

Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?

According to article 8(2) of the Constitution (SR 101), no one may be subject to discrimination based on race; origin; language; mental or psychological disability; social position; religious, political or ideological convictions; or gender.

Article 8(3) of the Constitution ensures the factual and legal equality of men and women, particularly in the areas of education, family and work. Men and women are entitled to equal pay for work of equal value.

In labour law, the Federal Act on Gender Equality applies. Article 1 promotes actual equality between the sexes. According to article 3(1), employees may not be discriminated against, either directly or indirectly, based on their gender (eg, because of marital status, family situation or pregnancy). This prohibition applies to remuneration, promotion, dismissal, the allocation of tasks and the organisation of working conditions. In the event of a refusal of employment based on discrimination, the affected employee is entitled to compensation under article 5(2) of the Federal Act on Gender Equality.

Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?

As a rule, employment contracts are not subject to any specific formal requirement (article 320 of the Code of Obligations). However, written contracts are recommended and are common. For some types of contracts, the written form is a validity requirement.

Article 330(b) of the Code of Obligations requires a written information letter after the commencement of work, including the names of the contracting parties, the date of commencement of the employment, the function of the employee, the salary and wage supplements, and the weekly working hours.

To what extent are fixed-term employment contracts permissible?

Chain employment contracts, which are a series of several fixed-term contracts, are not permitted. If a fixed-term employment contract is continued for a further fixed-term contract period, it is not a prohibited chain employment contract. It is, therefore, crucial that no new employment contract is created, but that an existing contract is extended for a certain period.

If the purpose of extending a fixed-term contract is to circumvent provisions on protection against dismissal or other statutory claims dependent on a certain minimum duration, the extension is prohibited. The question, therefore, arises as to how often a fixed-term employment contract can be extended without this leading to an employment relationship of indefinite duration. In our opinion, a fixed-term contract should only be renewable twice. Thereafter, an unlimited contractual relationship is generally to be assumed.

What is the maximum probationary period permitted by law?

The maximum probationary period permitted by law is three months (article 335(b)(2) of the Code of Obligations). An extension of this probationary period is not permitted, either by agreement or at the discretion of the employer. However, where the probationary period is interrupted by illness, accident or performance of a legal obligation, it will be extended accordingly (article 335(b)(3) of the Code of Obligations).

What are the primary factors that distinguish an independent contractor from an employee?

The classification of an individual as an employee or a contractor is governed by articles 18 and 319 of the Code of Obligations, as well as by case law. Work control, the grade of subordination and integration into the business organisation are crucial factors in determining the legal classification of the contract.

Is there any legislation governing temporary staffing through recruitment agencies?

Temporary staffing through recruitment agencies is governed by the Federal Act on Placement Agencies and Staff Leasing Services.

Recruitment agencies leasing out the services of their employees or placing personnel require authorisation from the competent authority. This authorisation is granted by the cantonal employment office. Additional authorisation of the State Secretariat for Economic Affairs is required if the agency is leasing out the services of employees, or placing personnel with an employer abroad or from abroad, to an employer in Switzerland.

The leasing out of services of personnel into Switzerland by an employer domiciled abroad is not permitted (article 12(2) of the Federal Act on Placement Agencies and Staff Leasing Services).