SWITZERLAND Law and Practice Contributed by: Philippe Nordmann, Irène Suter-Sieber, Jonas Knechtli and Gustaf Heintz, Walder Wyss
Circumstances reducing or eliminating the employee’s liability Of particular importance is the employee’s degree of fault: mere minor negligence (ignoring something that should have been considered on closer consid - eration) may result in an extensive reduction or even complete elimination of liability. Medium negligence (ignoring important rules of conduct but not downright elementary duties of caution) may at least result in a significant reduction of liability. Other practically relevant circumstances are the occupational risk, the level of education or technical knowledge required for the work in question, and the specific characteristics of the employee of which the employer is or should be aware. Possibility of deviations in favour of the employee The above-mentioned statutory principles represent the maximum employee liability. Contractual devia - tions are only possible in favour of the employee. 2. Restrictive Covenants 2.1 Non-Competes Statutory Prohibition of Competition During Employment During the term of employment, an employee is pro - hibited from competing with their employer by virtue of the statutory duty of loyalty. Post-Contractual Non-Compete Clauses Validity and enforceability The employer may only validly agree and enforce a (post-contractual) non-compete undertaking subject to the following prerequisites: • the non-compete clause must be agreed in writing, and must particularly determine the time, place and scope of the non-compete undertaking; • the employee must have gained insight into the employer’s customer base or manufacturing or business secrets in the course of the employment; • the employer must face substantial harm as a result of such insight (this is not the case if, for example, the employee’s services were predomi - nantly characterised by their personal abilities);
as doctor’s appointments) as well as important family matters (such as the passing away of close relatives), but only to the extent that they cannot reasonably be dealt with during the employee’s spare time. Despite the absence of a general employer’s obligation to continue compensation payments during such customary time off, the latter is assumed once the parties have agreed on a monthly or weekly salary without an express exception in this regard (the opposite is true for hourly salary earners). Cantonal law may provide for additional entitlements. Confidentiality and Non-Disparagement Pursuant to the statutory employee’s duty of loyalty, the employee must not exploit or reveal confidential information obtained while in the employer’s service, such as manufacturing or trade secrets. While the respective confidentiality obligation applies unrestrict - edly during the employment, its application after the end of the employment is limited to the extent required to safeguard the employer’s legitimate interests. The same duty of loyalty also requires the employee to principally refrain from any actions that could be eco - nomically damaging to the employer, including mak - ing any derogatory statements towards third parties (regardless of their veracity). Whistle-blowing is only protected under very limited prerequisites – ie, if the employee strictly adheres to the principle of propor - tionality. Employee Liability Principle Subject to a few special provisions, the employee is generally liable for any financial damage they cause to the employer either deliberately or by negligence. While the burden of proof for the existence of finan - cial damages resulting from an employee’s breach of contract lies with the employer, it is the employee who must prove that they were not at fault. The main difference compared to the usual contrac - tual liability lies in the special standard of care and the various circumstances that can lead to a reduction or even complete elimination of the employee’s liability.
636 CHAMBERS.COM
Powered by FlippingBook