On-Call Work In Switzerland

Author:Ms Natalija Matic
Profession:Rihm Attorneys
 
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Switzerland has no specific legislation on on-call work. The legal doctrine offers some definitions on the the institute of on-call work and the Swiss jurisprudence has developed certain rules regarding compensation for on-call work. An interesting statistical fact is that only 5.3 percent of employees in Switzerland were on-call workers in 2017.

On-call work is a special form of part-time work, with the difference that neither the date nor the duration of the work assignment is determined in advance. A distinction is made between "atypical " and the more usual "real" on-call work. The former is the case when the employee is not obliged to work, i.e. the call by the employer can only be qualified as an offer that needs to be accepted. In the case of real on-call work, the employee is obliged to follow the employer's call what requires that the employee must be on-call. Yet, he or she does not know whether it really comes to a work assignment.

The employee is on-call only during the entire time, in which he or she must be ready for a call. If, for example, an employee can only be called up on each Fridayof a work week, but at very short notice, the other working days of that weeek do not represent on-call work. The Public Swiss Labour Act contains provisions on a special form of on-call work in thge context of emergency cases. Accordingly, on-call duty performed in the work place represents normal working time. Whenever the employee does not have to be present for an on-call duty, it is not considered working time.

In a court ruling of 1998, the Swiss Federal Supreme Court for the first time confirmed the admissibility of on-call work. However, it stated that on-call time must be compensated, but not necessarily at the same rate as normal pay. As a general rule, the less free the employee is during on-call time, the higher the compensation must be. Another test is the employer's notice period: the shorter the notice period, the more limited is the employee's private life and therefore a higher compensation must be paid. This compensation can already be included in the salary and does not have to be remunerated additionally. For such an agreement to be valid, the respective salary must be higher than the one for employees that are not on-call workers.

The Swiss Federal Supreme Court also stated that the salary must be paid even if the employer renounces the employee's employment, otherwise the protection against dismissal would be undermined.

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