SWITZERLAND Law and Practice Contributed by: Philippe Nordmann, Irène Suter-Sieber, Jonas Knechtli and Gustaf Heintz, Walder Wyss
term employment contracts are to be reinterpreted into one permanent employment contract if there has been no objective reason for choosing consecutive fixed-term employment contracts over one permanent employment contract (so-called “illegal chain employ - ment contracts”). (No) Formal Requirements for Employment Contracts An employment contract is concluded by way of mutual, corresponding declarations of intent by the employer and the employee, pursuant to which the employee undertakes to work in the service of the employer for a limited or unlimited period, and the employer undertakes to pay remuneration to the employee for such work. As a matter of principle, such agreement does not require the observation of any particular form and can therefore also be concluded orally or even implicitly. However, specific employ - ment contracts such as apprenticeship contracts and contracts with temporary workers require observance of the written form (ie, the contract must be signed by all persons on whom it imposes obligations). Formal Requirements for Specific Contractual Provisions For reasons of legal certainty and/or employee pro - tection, a considerable number of specific contrac - tual provisions may only be bindingly agreed upon by observing the written form. This applies, inter alia, to: • deviations from the statutory compensation for overtime (see 1.3 Working Hours ); • deviations from the statutory provisions regard - ing continued salary payments in the case of an employee’s incapacity for work (see 1.5 Other Employment Terms ); • amendments to the statutory notice periods (see 7.2 Notice Periods ); and • non-compete clauses (see 2.1 Non-Competes ). 1.3 Working Hours Maximum Working Time per Week/Day Pursuant to the Labour Act (see 1.1 Employee Sta- tus ), the weekly working time may only exceed 45 or 50 hours in exceptional circumstances, and various provisions with regard to minimum rest periods (in particular mandatory minimum breaks and the general
prohibition of work during the night and on Sundays/ public holidays) must be observed which, inter alia, result in a maximum daily working time of 12.5 or 13 hours (depending on the calculation method). How - ever, these principles do not apply to all categories of employees and businesses. Part-time employees are generally subject to the same provisions as full-time employees – ie, the maximum working time is not calculated pro rata temporis. (No) Possibility of Flexible Arrangements The parties’ freedom to deviate from the above-men - tioned principles is very limited; the provisions are basically mandatory. Overtime and Extra Hours Swiss employment law differentiates between over - time (ie, the hours worked in excess of the contractu - ally agreed or customary weekly working time) and extra hours (ie, the hours worked in excess of the applicable maximum weekly working time, if any). While the employee is obliged to perform overtime if such overtime is required and to the extent that the specific employee is able and may conscionably be expected to do so (less frequently the case for part- time employees), the performance of extra hours requires the existence of exceptional circumstances, in addition to the requirements for the performance of mere overtime. In variable working time systems, there may be a third important category of hours worked in excess of the applicable weekly working time (ie, hours worked based on the employee’s time sovereignty). Compensation for Overtime and Extra Hours Pursuant to statutory provisions, overtime and extra hours are principally compensated by corresponding time off (if the employee consents) or an additional salary payment including a 25% surcharge (in the absence of the employee’s consent). While the parties may contractually exclude any com - pensation (whether in cash or in kind) for overtime as long as they observe the written form, compensation is mandatory with regard to extra hours. However, for
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