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This article provides an overview of the most relevant employment law judgments handed down by the Swiss Federal Supreme Court in 2024.
It aims to provide Employment law practicians a clear summary of key federal developments in recent federal case law, along with practical insights.
For the sake of clarity, this year's selection of judgments rendered by Swiss Federal Supreme Court in 2024 is presented under four main thematic headings, namely (I) salary, bonuses, performance-based remuneration and working time, (II) gender equality, (III) employment contract termination issues, and (IV) termination with immediate effect and indemnity.
I. SALARY, BONUSES, PERFORMANCE-BASED REMUNERATION, AND WORKING TIME
In 2024, the Swiss Federal Supreme Court issued several rulings that clarified the legal framework governing salary entitlements, discretionary bonuses, and the treatment of work interruptions. These judgments addressed key issues such as the distinction between salary and gratification, the conditions applicable to performance-based remuneration, and the classification of short absences as either compensable or non-compensable working time.
1. Clarification on the non-enforceability of "usual wages" in excluded sectors under the Collective Employment Agreement for the temporary staffing sector (CCT LSE) (JUDGMENT OF SEPTEMBER 4TH, 2024; 4A_539/2023).
In this case, the Swiss Federal Supreme Court ruled on whether usual (i.e., customary) wages must be applied in sectors explicitly excluded from the minimum wage rules set out in Art. 20 CCT LSE.
The dispute involved several temporary workers assigned between 2016 and 2019 to a company in the food industry. After their assignments ended, they claimed that they should have received higher wages – namely, the usual wages applicable in the sector and locality – arguing that this was implicitly required under the CCT LSE. Their claim was initially upheld, but the Vaud Cantonal Court reversed the decision, leading to an appeal before the Swiss Federal Supreme Court.
The Swiss Federal Supreme Court clarified that Art. 3 para. 3 CCT LSE excluded specific sectors, including the food industry, from the application of the minimum wages set out in Art. 20 CCT LSE until 31 December 2022.
While the CCT LSE mentioned that these sectors were excluded on the grounds that usual wages were generally higher than the CCT's minimum rates, the Court held that this explanation was merely descriptive and did not create any binding obligation to apply those usual wages.
The Swiss Federal Supreme Court further found that neither the official commentary on the CCT LSE nor statistical wage brochures created any enforceable rights. It stressed that if the parties had intended to mandate the application of usual wages, they would have done so in clear terms. Moreover, the existence of a separate monitoring mechanism to detect potential wage dumping would be redundant if such an obligation were already in place.
In line with prior case law (notably 4C_1/2014), the Court confirmed that in the absence of a binding provision, the usual wages referenced in Art. 3 para. 3 CCT LSE were not enforceable. The appeal has therefore been dismissed.
This judgment conclusively ends the long-standing legal debate over the interpretation of the CCT LSE in sectors excluded from its wage provisions. It confirms that explanatory clauses in a collective agreement do not create direct rights, and that wage claims must be grounded in explicit contractual or statutory obligations.
2. Burden of proof on employee in disputes over discretionary team bonus under variable remuneration scheme (JUDGMENT OF OCTOBER 28TH, 2024; 4A_41/2024)
Judgment 4A_41/2024 addresses the payment of a team bonus under a variable remuneration scheme and clarifies the employee's burden of proof in substantiating the amount claimed. The case involved a brokerage firm and a long-serving employee who had combined roles as broker and team manager within a commission-based compensation system.
An unsigned offer from March 2005 outlined a remuneration package consisting in three elements: a broker commission (30% of revenues the employee's own clients), a manager commission (5% of revenues generated by his team), and a discretionary team bonus. The latter was described as a pool amounting to 50% of the team's net brokerage revenue, to be allocated among team members – including the manager – by mutual agreement with the managing directors.
Upon leaving the company in 2008, the employee argued that he was entitled to a substantially larger share of the team bonus than what he had received, asserting that he should receive the entire bonus rather than just the portion allocated to him. He further alleged unpaid commissions and sought to offset these against the company's demand for repayment of advances.
The cantonal Court held that although the employee had received CHF 1'505'969.- in team bonuses for the years 2005 to 2007, he failed to establish any contractual or factual basis entitling him to a higher amount, particularly for 2007, where he claimed an additional CHF 372'843.50. Instead of rejecting the claim based on the legal classification of the bonus, the Court focused on the lack of substantiation: the employee had not demonstrated the portion of the bonus to which he was actually entitled.
The Swiss Federal Supreme Court upheld this reasoning. It emphasized that the employee had neither identified the specific amount he was claiming, nor properly alleged or proven it during the proceedings. The rejection was therefore not based on the legal classification of the bonus, but on the failure to meet the burden of proof.
This case demonstrates that even within agreed bonus frameworks, employees must clearly substantiate the portion they claim. In the absence of a contractual guarantee or specific allocation formula, a bonus may be considered discretionary and is not automatically enforceable.
3. Private individual, qualified as employer, held liable for breach of mandatory minimum wages in domestic work (JUDGMENT OF NOVEMBER 20TH, 2024; 2C_298/2024)
In this judgment, the Swiss Federal Supreme Court ruled on the liability of a private individual who had employed domestic workers without respecting the mandatory minimum wages set out in the Geneva standard employment contract (contrat-type de travail, CTT) for domestic work.
A workplace inspection revealed that the appellant had engaged two domestic employees and paid them below the wage thresholds prescribed by the Geneva CTT, which had been enacted under Art. 360a CO. The cantonal authorities imposed a fine of CHF 24'300.-, later reduced to CHF 15'000.-.
The appellant challenged the decision, arguing that she was not the employer, and that the employment had been undertaken on behalf of her late father. She also referred to a simple partnership structure and denied personal responsibility.
The Swiss Federal Supreme Court rejected these arguments, holding that the appellant had acted as the actual employer. She had recruited and supervised the employees, managed their pay, and directly communicated with them. The Court recalled that under Art. 319 CO, the status of employer depends on effective direction and contractual engagement, not on formalities or economic benefit.
The Court further confirmed that minimum wages set by a cantonal CTT under Art. 360a CO are binding, and their violation is sanctionable under Art. 9 para. 2 let. f LDét. These protections apply regardless of whether the employment is informal or the family ties between the appellant and her father.
This decision reinforces the principle that anyone assuming the functional role of an employer – particularly in regulated sectors such as domestic work – is fully responsible for complying with mandatory wage provisions, even in private household settings.
4. Short bathroom breaks qualify as personal pauses, not Compensable Working Time (DECISION OF JUNE 27TH, 2024; CDP.2024.36)
Although not issued by the Swiss Federal Supreme Court, this noteworthy cantonal ruling is also included in this section, as it offers useful guidance on the legal treatment of short breaks under Art. 15 LTr.
The case originated when the cantonal labor inspection authority (OCIRT) ordered a watchmaking company to stop requiring employees to clock in and out when using the restroom. The OCIRT argued that such a practice infringed on the employees' health and personality rights, discouraging hydration and potentially leading to health risks, in breach of Art. 6 LTr and Art. 328 CO. This order was upheld by the Department of Employment and Social Cohesion (DECS), which considered bathroom breaks part of working time.
On appeal, the Cantonal Court overturned these decisions. It held that short interruptions such as toilet breaks, cigarette breaks, or brief private phone calls are not "working time" but rather qualify as personal breaks under Art. 15 LTr. As such, the employer was within its rights to require clocking in and out for these intervals, especially in the absence of evidence that the system tracked the reasons for each break or violated employee privacy.
The Court rejected the argument that such a practice creates undue pressure on workers or poses a real health risk, calling those concerns speculative. It acknowledged the employer's freedom to organize working time (Art. 27 Cst.) and emphasized the general permissibility of monitoring break duration, provided that basic legal rest periods remain unaffected.
However, the Court recognized that requiring timestamping for bathroom use could result in indirect gender discrimination under Art. 8 para. 3 Cst. and Art. 3 GEA, since women may have more frequent or longer restroom needs, particularly due to menstruation. It invited the authorities to assess compensatory measures to mitigate this disparate impact.
This decision illustrates a restrictive interpretation of workers' rights in the context of micro-breaks and highlights the tension between operational control and health-based protections. It also implicitly introduces the controversial concept of "bathroom breaks as discretionary pauses", raising broader questions about employer discretion and equality in the workplace.
II. GENDER EQUALITY
Judgments in this section further develop the framework of the Gender Equality Act (GEA), particularly with respect to indirect discrimination in pay and the treatment of employees returning from maternity leave. The Swiss Federal Supreme Court emphasized the reversal of the burden of proof and the requirement that employers justify disparities on the basis of objective and verifiable factors.
1. Indirect pay discrimination and burden of proof (JUDGMENT OF JULY 31ST, 2024; 1C_471/2023)
In this decision, the Swiss Federal Supreme Court confirmed the existence of gender-based wage discrimination under Art. 3 GEA in the public education sector of the Canton of Vaud, illustrating the scope and operation of the burden of proof reversal under Art. 6 GEA.
The claimant, a teacher in the "Information, Communication and Administration" (ICA) subject area – characterized as a typically female profession – challenged her salary classification relative to that of teachers in "general education" subjects, which are considered a gender-mixed profession. Following a reform of the cantonal salary system in 2008, general education teachers were retroactively reclassified to a higher pay scale with effect from 1 December 2008, while ICA teachers were only granted reclassification from 1 May 2019, unless they had initiated legal proceedings earlier.
The Swiss Federal Supreme Court upheld the Vaud cantonal appellate court's finding that this temporal gap in reclassification created a presumption of indirect discrimination based on gender, as ICA was statistically a female-dominated field and had been administratively recognized as equivalent to general education since at least 2012.
The Court reiterated that under Art. 6 GEA, once a claimant renders discrimination plausible, the burden shifts to the employer to prove, with objective justification, that the pay disparity is not discriminatory. It rejected the employer's argument that the later recognition of ICA as a general education subject justified the delay. While this reasoning could explain the baseline date for retroactivity (i.e. 2012 rather than 2008), it failed to account for why some ICA teachers benefited from retroactive reclassification only if they had initiated proceedings. This disparity in treatment was not grounded in any objective factor and thus confirmed the presumption of unlawful discrimination.
The Court also clarified that employers cannot invoke the complexity of disproving a "negative fact" (i.e. the absence of discrimination) to evade the reversed burden of proof imposed by Art. 6 GEA. The presumption mechanism is an integral part of the GEA framework and cannot be undermined in terms of fairness or evidentiary logic.
This judgment reaffirms that where gender-linked discrepancies in treatment exist – particularly when they arise from procedural or systemic gaps – public employers bear the full burden of establishing that the differential impact is objectively justified. Failure to do so results in a finding of unlawful discrimination under the GEA.
2. Reassignment of client portfolio after maternity leave: no indirect discrimination established (JUDGMENT OF MARCH 27TH, 2024; 4A_461/2023)
In this case, the Swiss Federal Supreme Court addressed the scope of managerial discretion when reassigning responsibilities to an employee returning from a prolonged maternity-related absence. The Court also considered whether such reassignments might constitute indirect discrimination under the GEA.
The employee had been on medical leave during her pregnancy, followed by maternity leave and a four-month unpaid leave. Upon her return at 80% workload, she was assigned a significantly different client portfolio: her previous large accounts were redistributed, and she was given a greater volume of smaller, less profitable clients. The employer justified this measure as intended to reduce travel and facilitate her reintegration.
The employee contested the reassignment and later her dismissal, claiming a violation of Art. 3 GEA and arguing that the change was discriminatory and detrimental to her career. She also alleged a breach of the employer's duty to protect her personality and accommodate her return appropriately.
The Swiss Federal Supreme Court upheld the lower court's decision rejecting the claim. It found that although the new portfolio differed substantially, the reassignment fell within the employer's organizational discretion. The Court emphasized that the employee had not substantiated her discrimination claim adequately at the cantonal level, particularly in light of the procedural requirements of the GEA. Moreover, the employer had made efforts to adapt working conditions in a manner that could reasonably be interpreted as supportive rather than punitive.
In summary, while the case raises substantial concerns about the treatment of employees returning from maternity leave and highlights missed opportunities to address potential gender-based discrimination, the Swiss Federal Supreme Court dismissed the appeal on procedural and evidentiary grounds.
3. No unlawful discrimination in bonus reduction for optional post-maternity absence (JUDGMENT OF MAY 15TH, 2024; 4A_597/2023)
In this case, the Swiss Federal Supreme Court addressed whether an employer may reduce a contractually agreed performance-related bonus due to an employee's maternity-related absence, and whether such a reduction constitutes unlawful discrimination under the GEA.
The employee, a manager, had taken maternity leave and was absent from work between July 2018 and January 2019. She later resigned and initiated proceedings to claim several outstanding salary components, including the balance of her 2018 bonus, a special discretionary bonus, and a salary adjustment. She alleged that reductions to these entitlements were discriminatory and unjustified.
The Swiss Federal Supreme Court confirmed that under Art. 322d CO, employers may tie bonus amounts to presence and performance, provided the bonus qualifies as a gratification and not as a salary component. In this case, the bonus was contractually linked to annual performance, and the employer retained discretion in determining the final amount. The Court accepted that extended absences, regardless of their cause, may justify pro rata reductions, as they affect measurable performance.
The key legal issue concerned the reduction applied to the portion of maternity leave between the 9th and 16th weeks after childbirth. The Court found that, while the first eight weeks are protected by a mandatory prohibition on working under Art. 35a para. 3 LTr, the remaining period (i.e. between the 9th and the 16th weeks) is legally optional. Accordingly, it is not discriminatory for an employer to take into account the employee's absence during this later stage of leave, provided comparable non-gendered absences (e.g. illness or vacation) are treated comparably.
In line with Art. 3 GEA and Art. 8 para. 3 Cst., the Court concluded that no direct or indirect discrimination had occurred. The employee had no contractual entitlement to a full bonus, and her absence during the optional portion of maternity leave could be treated like any other unpaid or performance-reducing absence.
Regarding the special discretionary bonus – awarded for the employee's role in a European regulatory initiative – the Court held that no enforceable entitlement had been established in the contract. The employee's reliance on informal communications with her superior was insufficient, as she lacked authority to bind the employer. No discriminatory treatment was found in this regard either.
This judgment clarifies that while maternity leave must be respected, optional periods beyond the protected phase may be taken into account in bonus calculations. It underscores the importance of clear contractual terms and rejects indirect discrimination claims where employers apply neutral, performance-based criteria.
III. EMPLOYMENT CONTRACT TERMINATION ISSUES
This section addresses challenges arising at the termination of the employment relationship, including the issuance of work certificate, protection against dismissal during illness, and safeguarding of personality rights. Jurisprudence underscores the development of standards on medical incapacity standards and delineates the employer's obligations where reputational harm is concerned. The enforceability of non-competition clauses in light of employee conduct, delayed resignations, and compensation payments are also addressed.
1. Workplace-specific incapacity excluded from art. 336c CO protection (JUDGMENT OF MARCH 26TH, 2024; 1C_595/2023)
In this judgment, the Swiss Federal Supreme Court explicitly endorsed, for the first time, the theory of "workplace-specific incapacity for work" (incapacité de travail limitée à la place de travail), which has been progressively recognized in Swiss legal doctrine and German-speaking case law since 2010.
The case concerned a senior military officer dismissed while on medical leave. The employee argued that his dismissal was null under Art. 336c para. 1 let. b CO (which protects employees from dismissal during periods of illness). He contended that his condition – diagnosed as fibromyalgia and anxiety-depression – was caused by workplace stress and amounted to a full incapacity for work. The employer, however, relied on medical evidence indicating that the incapacity was limited solely to the specific work environment and not general in nature.
The Federal Supreme Court confirmed that Art. 336c CO is inapplicable when the employee's health impairment is so minor – or so narrowly tied to a particular workplace context – that it does not prevent the employee from engaging in employment elsewhere. Such incapacity does not trigger protection against dismissal, provided it is established that the restriction is not general.
The Court further rejected the employee's claim of mobbing, emphasizing that, in the absence of proven psychological harassment or employer misconduct, there was no violation of the employer's duty under Art. 328 CO to protect the employee's personality. Consequently, no obligation to adapt the work environment arose.
This case marks a significant development in the application of dismissal protections by affirming the relevance of medical certificates distinguishing between general incapacity and workplace-specific incapacity, often referred to in practice as "variable-content work certificates" (certificats médicaux à géométrie variable). It underscores the importance for employers to act promptly and maintain clear documentation if they intend to rely on such a classification.
The ruling also signals increased complexity for employees seeking protection under Art. 336c CO: medical certificates must expressly establish a general incapacity, not merely a situational one. Failure to do so may leave them unprotected, even if their health condition is serious.
2. Work certificate must reflect reconstructed end date after unjustified dismissal (JUDGMENT OF SEPTEMBER 5TH, 2024; 4D_103/2024)
This judgment addresses the appropriate end date to be indicated in a work certificate following an unjustified immediate dismissal and confirms the legal principle that the effective date of termination must correspond to the reconstructed end date under Art. 337c para. 1 CO.
The case concerned an employee hired under a fixed-term contract from 1 June to 31 December 2021. On 20 October 2021, she notified her employer of a one-week incapacity for work. That same day, the employer issued an immediate dismissal without notice. The employee successfully claimed compensation for termination without just cause, and the courts ordered the employer to issue a corrected work certificate reflecting the original end date of 31 December 2021.
The employer contested this requirement, arguing that it would amount to issuing a false document and could expose her to potential criminal liability under Art. 251 para. 1 CP. Both the lower courts and the Swiss Federal Supreme Court rejected this argument.
The Court reiterated that a qualified work certificate under Art. 330a CO must reflect the objective duration of the employment relationship as recognized in law, not merely the date on which the employer unilaterally terminated the contract. In cases of unjustified immediate dismissal, the employee is deemed to remain employed until the end of the notional notice period under Art. 337c CO. Accordingly, the employment certificate must state the reconstructed end date.
This decision consolidates the position in case law and doctrine that, even in cases of abrupt termination, the work certificate must present the legal (not factual) termination date, thereby protecting the employee's reputation and ensuring the legal consistency of employment records.
3. Employer's duty to protect personality rights in reputational risk dismissals (JUDGMENT OF DECEMBER 10TH, 2024; 4A_51/2024)
In this decision, the Swiss Federal Supreme Court examined the employer's duty to protect an employee's personality rights (Art. 328 CO) in a high-profile dismissal case involving reputational risk arising from media coverage.
The case concerned a union employee dismissed after a press article reported accusations of inappropriate conduct toward women, allegedly committed by a "well-known trade unionist". Although the article did not name him, it contained sufficient information for public identification. The employer promptly suspended the employee, initiated an internal investigation, and issued a public statement announcing the inquiry. He was later dismissed on the basis of the investigation's findings.
The employee argued that the employer had failed to protect his personality rights, alleging abusive dismissal and reputational harm. He sought moral and economic compensation and requested a letter to clear his name. The Swiss Federal Supreme Court rejected these claims.
The Court held that while Art. 328 CO obliges employers to avoid unnecessarily stigmatizing employees, this duty must be interpreted in light of the circumstances. The employer had not disclosed the employee's name, had limited its public statements to what was strictly necessary, and had refrained from publicizing the investigation results. It had also carried out a proper inquiry before taking actions.
The Court reiterated that damage resulting solely from media exposure does not engage the employer's liability where the employer neither caused nor amplified it. Since the dismissal was based on documented concerns and conducted without excessive exposure, it was not abusive.
This judgment confirms that employers may take precautionary and communicative measurer when managing public allegations, provided they respect proportionality and confidentiality. The duty to protect personality rights does not amount to a duty of silence in the face of credible public accusations.
4. Validity of non-competition clauses: effect of delayed resignation and acceptance of compensation (JUDGMENT OF JANUARY 3RD, 2024; 4A_426/2023)
This case concerns the validity of a post-employment non-competition clause following an employee-initiated termination and the interpretation of Art. 340c CO regarding justified reasons that may render such a clause inapplicable.
The employee, a deputy director and project manager, resigned in November 2020 with effect as of May 2021. He argued that the non-compete clause should be deemed void, or at least time-limited, due to the employer's failure to pay performance bonuses owed for the years 2019 and 2020. The employee subsequently claimed both outstanding bonuses and the invalidity of the clause.
While the first-instance Court held that the employer's failure to pay the 2019 bonus constituted a justified reason for resignation, thereby rendering the non-compete clause inapplicable, the Zurich Cantonal Court reversed this conclusion. The Swiss Federal Supreme Court upheld the latter decision.
The Court reaffirmed that under Art. 340c para. 2 CO, a non-compete clause ceases to apply when the employer gives justified cause for the employee's resignation. However, a causal link must exist between the justified reason and the decision to resign.
A non-compete clause does not require the employee to react instantly; nevertheless, excessive delay may indicate that the reason was not decisive. In this case, the several-month delay between the non-payment of the bonus and the employee's resignation weakened the causal connection.
The Court further emphasized that the employee had actively demanded the payment of the non-compete compensation (indemnité de carence) and accepted monthly payments corresponding to 50% of his base salary. This conduct amounted to a tacit acknowledgment of the clause's validity, confirming the existence of a bilateral contractual relationship.
Finally, the Court confirmed that the compensation paid by the employer was relevant in assessing the proportionality of the clause. Given that the employee received substantial monthly compensation and retained the ability to work outside competing sectors, the clause could not be considered excessive.
This ruling illustrates that contesting the validity of a non-compete clause requires timely action and consistency in conduct. Acceptance of compensation and delayed resignation may undermine such claims, even where contractual breaches are alleged.
IV. TERMINATION WITH IMMEDIATE EFFECT AND INDEMNITY
The case law rendered in 2024 sharpened the contours of what constitutes a justified immediate termination. The Swiss Federal Supreme Court reaffirmed that dismissals under Art. 337 CO must rest on objectively serious breaches, and that compensation under Art. 337c CO depends both on employer fault and the employee's duty to mitigate losses. Issues relating to freedom of expression, evidentiary standards in internal investigations, and the treatment of reputational damage or loss of trust as grounds for immediate termination also emerged as salient considerations.
1. Immediate dismissal for time-recording error deemed unjustified under art. 337 CO (JUDGMENT OF NOVEMBER 8TH, 2024; 4A_353/2024)
This judgment concerns the unjustified immediate dismissal of an employee based on a time-recording system error and the employer's failure to establish a sufficiently serious breach of trust under Art. 337 CO.
The employee, a laboratory technician, had been working full-time since 2017. Due to an administrative oversight, the employer failed to update the employee's working hours in the time-tracking system. As a result, the employee was not logging the full 40-hour schedule, though he continued to receive his full salary. The employee discovered the discrepancy in early November 2018 but did not report it. Upon learning of the issue in January 2019, the employer terminated him immediately on 1 February 2019.
The Swiss Federal Supreme Court upheld the Cantonal Courts' finding that the dismissal was unjustified. It reaffirmed that under Art. 337 CO, a termination with immediate effect requires a particularly serious breach of duty, either objectively destructive of trust or subjectively experienced as such. In this case, the employee's omission to report the error did not meet that threshold.
Indeed, the Court noted several mitigating factors: the error stemmed from the employer's own failure to adjust the system; the employee had no clear obligation to monitor the technical parameters of his work schedule; and the employer had not previously issued any warnings despite tolerating deviations in core working hours. It further emphasized that the employee's behavior – although a breach of the duty of loyalty under Art. 321a CO – was not malicious and did not reflect a willful intent to cause harm.
The Swiss Federal Supreme Court confirmed the employee's entitlement to compensation under Art. 337c CO. It validated both the salary replacement and the punitive indemnity, set at the equivalent of one month's pay. The Court reiterated that such indemnity serves both a compensatory and sanctioning function and may only be withheld in exceptional circumstances.
This judgment highlights that errors attributable to the employer's own system or oversight cannot be converted into serious misconduct of the employee without clear evidence of bad faith from the latter. Employers must weigh the proportionality of immediate dismissal carefully, particularly when no prior warnings have been issued.
2. Compensation under art. 337c CO reduced for employee's failure to mitigate damages after unjustified dismissal (JUDGMENT OF OCTOBER 30TH, 2024; 4A_90/2024)
This judgment addresses the employer's ability to reduce compensation under Art. 337c CO following an unjustified immediate termination, based on the employee's failure to mitigate damages by actively seeking alternative employment.
The case involved a professional football coach dismissed without notice in September 2018. The dismissal was found to be unjustified, and the employee was awarded compensation. However, the cantonal Court reduced the amount owed under Art. 337c paras. 1 and 2 CO, finding that the employee had deliberately lost income by not applying for new jobs consistently in the months following his dismissal.
The Swiss Federal Supreme Court upheld this reasoning. It reaffirmed that while the burden of proof rests on the employer (to demonstrate that the employee intentionally failed to seek employment), it is not necessary to show that the employee would have in fact secured a position. It is sufficient to establish that the labor market conditions would reasonably have allowed the employee to find a suitable role had he acted diligently.
The Court found no arbitrariness in the cantonal Court's conclusion that the employee's job search was delayed without valid justification. In particular, from October 2018 to early 2019, the employee submitted very few applications despite being unemployed. Once he began applying consistently in the spring, he secured new employment within five months, illustrating that opportunities were available.
In estimating the value of the foregone income, the cantonal Court noted the employee's refusal to disclose his later salary and inferred a comparable earning potential to his previous position. A reduction of CHF 87'333.35 was accordingly applied to the compensation.
This judgment underscores that employees dismissed with immediate effect must take proactive steps to limit financial loss. Courts may infer an intentional renunciation of income where efforts to find work are demonstrably insufficient, especially in favorable market conditions.
3. Immediate dismissal of Federal Official for social media misconduct upheld: loyalty duties prevail over freedom of expression (JUDGMENT OF MARCH 4TH, 2024; 1C_514/2023)
This case concerns the immediate dismissal of a federal official for misconduct on social media and raises fundamental questions regarding the limits of freedom of expression for public servants in light of their duty of loyalty.
The employee, a legal advisor with the Federal Data Protection and Information Commissioner (FDPIC), was responsible for international matters and had represented Switzerland in high-profile international forums. In 2022, the FDPIC terminated his employment with immediate effect after he posted on Twitter that a Federal Council decision amounted to "rescuing profiteers with taxpayers' money" and shared degrading comments targeting women, including remarks based on sexual orientation and appearance.
The Swiss Federal Supreme Court upheld the dismissal, confirming that such statements – although made in a private capacity – breached the employee's elevated duty of loyalty. It emphasized that public officials must safeguard the reputation, credibility, and neutrality of federal institutions, even outside their direct professional duties. The employee had previously acknowledged the binding nature of the federal "Code of Conduct", which explicitly required discretion in personal conduct to protect the public image of the Confederation.
In its analysis, the Court acknowledged that civil servants may engage in political activity and express opinions, but only within the bounds of proportionality and respect for institutional neutrality. Given the employee's prominent role and visibility, his conduct had a direct and negative impact on the FDPIC's reputation. The tweets, combined with an internal email sent in disrespectful terms to colleagues, were deemed to have deeply undermined the trust essential to continued employment.
The Court rejected the employee's argument that his speech was protected under Art. 16 Cst. and Art. 336 CO, stating that freedom of expression does not shield statements that breach professional obligations. It further noted that even absent a criminal conviction, the cumulative effect of the conduct justified immediate dismissal. The Court also dismissed claims of procedural unfairness, concluding that the employee had effectively waived his right to be heard by refusing to retrieve the official notification of the proceedings despite repeated reminders.
This judgment sets a clear precedent on the limits of public servants' speech: even in a private capacity, public criticism of government institutions and disrespectful conduct on social media may constitute a serious breach of duty. Loyalty and discretion are essential attributes of public service, particularly in roles involving international representation.
4. Criminal procedural safeguards do not apply to internal workplace investigations (JUDGMENT OF JANUARY 19TH, 2024; 4A_368/2023)
In this Judgment, the Swiss Federal Supreme Court clarified that the procedural safeguards applicable in criminal proceedings do not extend to internal investigations conducted within private employment relationships.
The case concerned an employee who was dismissed following internal investigations into allegations of sexual harassment raised by colleagues. The employer had conducted interviews, reviewed messages, and issued a termination following the investigation's outcome. The employee challenged the dismissal, arguing that his procedural rights – comparable to those in criminal law – had been violated, and that this rendered the dismissal abusive.
The Swiss Federal Supreme Court firmly rejected this argument. It acknowledged that internal investigations may structurally resemble criminal inquiries, but reaffirmed that employment contracts are governed by private law, where criminal procedural protections – such as the right to remain silent or to a presumption of innocence – do not apply. The employer must act diligently and fairly, but is not held to a criminal standard of proof.
The Court emphasized that a dismissal based on well-substantiated suspicion is not abusive, even if the allegations are ultimately unproven. What matters is whether the employer acted in good faith and carried out a serious investigation. In this case, the investigation had been sufficient, and the employee's rights had not been violated.
This ruling confirms that employers may respond to sensitive accusations with reasonable investigative measures, as long as they remain within the boundaries of diligence and fairness under contract law. The application of criminal standards to internal employment investigations is definitively excluded.
5. Ordinary dismissal for alleged disloyal conduct not abusive where based on credible evidence (JUDGMENT OF MAY 1ST, 2024; 4A_302/2023)
In this judgment, the Swiss Federal Supreme Court reiterated that an ordinary dismissal is abusive when it is based on allegations of dishonorable conduct, if those allegations are proven to be unfounded and were made without serious supporting evidence or prior verification.
The case concerned a senior sales manager who was dismissed following a conversation with a potential new agent. The employer accused him of suggesting business arrangements that would have increased commission costs for the company, allegedly for the employee's personal gain. The dismissal letter claimed a serious breach of trust and improper conduct. The employee contested this, asserting the allegations were not only false but also based on inaccurate assumptions and economic speculation.
The Swiss Federal Supreme Court reaffirmed that Swiss labor law does not require employers to issue warnings or conduct a proportionality test before dismissing an employee. However, it stressed that if an employer accuses an employee of dishonorable conduct, they have a duty to verify the facts before acting. The employer must have at least a serious indication of wrongdoing; otherwise, the dismissal may be deemed abusive under Article 336 CO.
In this case, the Court found that the employer's suspicions were credible, supported by a detailed complaint, and concerned conduct that – although not criminal – was economically disadvantageous and violated the employee's duty of loyalty. Given the employee's senior role, the Court held that the trust essential to the employment relationship had been undermined. It further emphasized that the absence of a prior hearing or the inability of the employee to defend himself did not, in itself, render the dismissal abusive.
The Court therefore concluded that the dismissal was not abusive and rejected the employee's claim for compensation.
This judgment confirms that even in cases of non-criminal misconduct, employers must base serious accusations on verifiable facts. Where that threshold is met, and the trust relationship is legitimately damaged, ordinary dismissal may be lawful, even without a formal investigation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
