In Swiss employment law, the fundamental principle is that salary is the consideration for the work performed. The statute nevertheless imposes on the employer an essential social maintenance obligation where the employee is incapable of working for involuntary personal reasons.
This statutory provision guarantees the temporary payment of the remuneration while setting the conditions of access, the minimum duration of cover and the rules for substitution by an insurance scheme.
The substantive conditions and the required length of service
In order to claim continued payment of his salary without working, the employee must meet several cumulative conditions:
- Grounds inherent in the person and not attributable to fault: The prevention must result from a cause proper to the employee (such as illness, accident, fulfilment of a legal obligation, a public office or pregnancy) through no fault of his own, and the medical impairment must be the direct cause of the incapacity for work.
- A minimum duration of the contract: The right to salary arises only if the employment relationship has lasted more than three months or was concluded for more than three months from the outset; in an open-ended contract with ordinary notice that has not reached three months, the employee must bear a waiting period until the first day of the fourth month of service.
The duration of payment and the possibility of an insurance scheme
The extent of the employer’s obligation increases with length of service and may be arranged by equivalent collective cover:
- The basic statutory duration: During the first year of service, the employer must pay the salary in full for at least three weeks; thereafter, payment extends for a longer period fixed equitably according to the years of service (given concrete effect in practice by the cantonal Bern, Basel or Zurich scales). This annual credit accumulates over the year of service and ends in principle with the employment relationship.
- The equivalent derogating scheme: A written agreement, a standard employment contract or a collective employment contract may derogate from this statutory scheme by replacing the direct payment of salary with a loss-of-earnings insurance (daily allowances), on the strict condition that it grants benefits that are at least equivalent (classically 80% of the salary for 720 days within a period of 900 days, with the employer bearing at least half of the premiums).
The point at which this salary is due is set out in the article on salary in the event of illness. Its duration is often given concrete effect by the Bern scale or the Zurich scale.
Legal sources
Federal legislation:
- Art. 324a CO (continued payment of salary in the event of non-culpable prevention from working, conditions as to length of service, minimum duration of three weeks, equitable extension, pregnancy and an equivalent scheme by written agreement)
- Art. 362 para. 1 CO (cited by BGE 131 III 623 ; Federal Supreme Court judgment 4A_228/2017 ) (relatively mandatory nature of the statutory protection in favour of the employee)
Federal case law:
- BGE 131 III 623 (conditions of a minimum length of service of three months, calculation of the waiting period in open-ended contracts and formal requirements for contractual derogations)
- BGE 152 III 23 (notion of non-culpable prevention inherent in the person, causal link between illness and the fact that performance of the work can no longer be required, and cases of concurrent grounds)
- Federal Supreme Court judgment 4A_228/2017 (distinction between the basic statutory scheme, cantonal judicial scales, a supplementary scheme and an equivalent derogating insurance clause)
- Federal Supreme Court judgment 4C.36/2007 (aggregation of absences during the same year of service and the right to salary in the event of pregnancy)