SWITZERLAND Law and Practice Contributed by: Rayan Houdrouge and Kathryn Kruglak, Walder Wyss Ltd
may refuse, restrict or delay providing information when the request for access is obviously unjustified (eg, the information is being sought for non-data pro - tection-related purposes, such as to prepare a civil claim). An employer also may refuse, restrict or delay provid - ing information to: (i) safeguard overriding third-party interests, or (ii) safeguard their own overriding inter - ests, in so far as they do not intend to disclose the personal data to third parties. Moreover, in some instances, it may be possible to rely on a formal legal provision to refuse, restrict or delay providing information (eg, attorney–client privilege). In this context, it should be noted that the Swiss Federal Supreme Court recently ruled that internal investiga - tions conducted by law firms should be protected by attorney–client privilege (Decision 7B_158/2023 of 6 August 2024). Further, when there is an internal policy in place, employees may be able to rely upon this to obtain information. 7.4 AI In practice, AI is increasingly used in Switzerland dur - ing HR internal investigations, especially for document review. For instance, AI can be used to search and organise emails sent by an employee suspected of an infraction. Unlike some jurisdictions, Switzerland does not have specific rules governing the use of AI. This means that any of use of AI, including in the context of an HR internal investigation, must be assessed to see whether it applies to general Swiss law provisions (eg, data protection law, employment law, labour law). Therefore, it is important to ensure that any use of AI, especially when conducting interviews, complies with the legal requirements mentioned elsewhere in this section, in particular 7.1 Collecting Personal Data . It is essential that the employer understand the AI sys - tem it is using, both in terms of what data is collected and whether that data is sent/stored, especially as many popular AI systems were developed in states not recognised by Switzerland as having adequate
data protection under Annex 1 of the Data Protection Ordinance.
8. Special Cases 8.1 Whistle-Blowing
There is no general law on whistle-blowing or overall, specific whistle-blowing protections. The adoption of such a law has been the subject of heated debates in Switzerland but, so far, such a law has not been adopted. If an employee were terminated as retaliation (ie, fir - ing an employee for raising a concern), this typically would be deemed an abusive termination under the Swiss Code of Obligations. With respect to external whistle-blowing, the Swiss Federal Supreme Court has set conditions under which this should be permissible, despite being in vio - lation of an employee’s general duty of loyalty towards the employer. In particular, external whistle-blowing must be an ultima ratio, meaning internal channels have not succeeded. Further, in certain sectors, there could be specific rules around whistle-blowing (eg, financial sector). Moreover, federal government employees, and some cantonal employees, have specific duties and protec - tions with respect to whistle-blowing. In addition, if the employer has an internal policy cov - ering whistle-blowing, this should be followed. 8.2 Sexual Harassment and/or Violence The Gender Equality Act provides protection against discrimination, including discrimination through sex - ual harassment. Sexual harassment is defined as “[a]ny harass - ing behaviour of a sexual nature or other behaviour related to the person’s sex that adversely affects the dignity of women or men in the workplace is discrimi - natory. Such behaviour includes in particular threats, the promise of advantages, the use of coercion and the exertion of pressure in order to obtain favours of a sexual nature” (Article 4 of the Gender Equality Act).
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