Under Swiss employment law, where an employee is prevented from working through no fault of his own by reason of illness, and no equivalent daily-allowance insurance has been taken out, the employer must pay his salary for a limited time.
The statute provides for payment of salary for at least three weeks during the first year of service, and then for a longer period fixed equitably according to the duration of the employment relationship.
To give concrete content to this equitable duration, the Swiss courts apply reference scales, including the Zurich scale (Zürcher Skala), applied mainly in the Canton of Zurich and in German-speaking Switzerland.
How the right to salary progresses according to years of service
The Zurich scale assesses the right to continued payment of salary progressively according to the employee’s length of service with the company:
- At the start of the employment relationship: Payment of salary is 3 weeks during the 1st year of service (once the contract has lasted more than 3 months or was concluded for more than 3 months), rises to 8 weeks during the 2nd year of service, to 9 weeks during the 3rd year, and then to 10 weeks during the 4th year of service.
- For the following years of service: The right to salary generally increases by one additional week per year of service up to the 10th year, and then continues to increase in regular steps for longer service.
How the salary credit is calculated
The practical application of the Zurich scale follows strict rules defined by statute and case law:
- Calculation by year of service: The right to continued payment of salary determined by the Zurich scale is a time credit specific to each year of service (and not by calendar year or by separate illness); all absences due to non-culpable prevention during the same year of service are added together to determine whether this annual quota has been exhausted. The credit renews at the start of each new year of work.
- Extinction and subsidiarity: Unless a derogating contractual agreement provides otherwise, the statutory obligation to continue paying salary ends at the latest with the end of the employment relationship; in addition, the Zurich scale applies only on a subsidiary basis where the employer has not put in place a collective daily-allowance insurance providing benefits that are at least equivalent.
It gives concrete effect to the equitable duration provided for by Article 324a CO. The courts of French-speaking Switzerland generally refer to the Bern scale.
Legal sources
Federal legislation:
- Art. 324a CO (obligation to continue paying salary in the event of illness, statutory minimum of 3 weeks and calculation of a longer equitable duration)
- Art. 362 para. 1 CO (cited by Federal Supreme Court judgment 4A_53/2007 ) (relatively mandatory provisions protecting the right to continued payment of salary)
Federal case law:
- Federal Administrative Court judgment C-5236/2020 (recognition and application of judicial scales, in particular the Zurich scale, to set the equitable duration of continued payment of salary according to length of service)
- Federal Supreme Court judgment 4A_53/2007 (end of the obligation to continue paying salary with the end of the employment contract, and equivalence of contractual insurance schemes)
- Federal Supreme Court judgment 4A_50/2011 (absence of coordination between protection against dismissal and the duration of the obligation to pay salary)