Under Swiss labor law, when an employee is unable to perform their duties through no fault of their own due to illness, and no equivalent loss-of-earnings insurance has been taken out, the employer is required to pay their salary for a limited period.
While the law sets a minimum floor of three weeks during the first year of service, it stipulates that the duration must subsequently be determined fairly based on the employee's length of service.
To define this concept of fairness, judicial practice applies reference scales, the most prominent of which is the Bernese scale, which is widely used by courts in French-speaking Switzerland.
The duration scale based on years of service
The Bernese scale establishes a progressive grid that directly links the number of months of guaranteed salary to the years of service within the company:
- During the first few years: Full salary payment is provided for 3 weeks during the first year of service, increasing to 1 month during the 2nd year, 2 months for the 3rd and 4th years, and 3 months for the 5th to 9th years of service.
- For longer periods of service: The right to salary amounts to 4 months for the 10th to 14th years of service, 5 months for the 15th to 19th years, and continues to increase in stages (6 months from the 20th year of service onwards).
Practical methods for calculating salary credit
The practical implementation of the Bernese scale follows calculation rules clearly defined by case law:
- Renewal by year of service: The right to salary maintenance provided by the Bernese scale constitutes an annual credit that renews at the start of each new year of service for the employee, rather than by calendar year or by individual illness episode; days of absence due to incapacity occurring within the same year of service are aggregated to determine whether the quota granted by the scale has been exhausted.
- Time limits and termination of contractual relations: Salary payments according to the Bernese scale represent a direct obligation of the employer that generally ends with the termination of the employment contract, as the scale serves only as a supplementary reference in the absence of collective daily allowance insurance guaranteeing at least equivalent coverage.
It gives concrete effect to the fair duration provided for by Article 324a of the Swiss Code of Obligations. In German-speaking Switzerland, courts tend to apply the Zurich scale.
Legal sources
Federal legislation:
- Art. 324a CO (salary maintenance in the event of non-faulty inability to work, three-week legal minimum, fair extension, and insurance equivalence)
- Art. 362 para. 1 CO (cited in Swiss Federal Supreme Court ruling 4A_228/2017; Swiss Federal Supreme Court ruling 4A_53/2007) (relatively mandatory nature of the protection under Art. 324a CO)
Federal case law:
- Swiss Federal Supreme Court ruling 4P.87/2002 (application of the Bernese scale and renewal of salary credit by year of service)
- Swiss Federal Supreme Court ruling 4A_215/2011 (application of the Bernese scale to quantify the salary period due as compensation based on seniority)
- Swiss Federal Supreme Court ruling 4A_98/2014 (function of the Bernese scale as a guideline to facilitate the application of the equitable period and expiration of the right at the end of the contract)
- Federal Supreme Court judgment 4A_228/2017 (recognition of the Bernese scale as a reference guideline applied by French-speaking Swiss courts in the face of derogatory contractual regimes)