Switzerland has no specific legislation on on-call work. The legal doctrine offers some definitions on 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 Friday of 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 the 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.
There are also legal issues with regard to unemployment insurance. If not contractually agreed upon, there is usually no guarantee for a certain scope of employment with corresponding remuneration in the case of on-call work, so the on-call worker does not suffer any loss of work or earnings under the Swiss Unemployment Insurance Act during the period in which he or she is not invited to work and therefore does not receive any monies. According to jurisprudence, it is possible to deviate from this principle if the hours worked on-call during a longer period were regular and without significant fluctuations. However, this may cause difficulties. In the case of an employment relationship of less than 6 months, no normal working time can be determined and therefore the fluctuations in a longer employment relationship with an average number of hours worked per month may not exceed 20 percent, either upwards or downwards. If that is the case, the loss of work and earnings cannot be taken into account.
An open question also pertains to interim earnings. Any income from employment or temporary self-employment that is earned within the framework period for the receipt of benefits is regarded as interim earning. Within the scope of the duty to minimise losses, the recipient of unemployment benefits is obliged to undertake everything reasonable to avoid and reduce unemployment. According to the Swiss Federal Supreme Court, it is no longer possible to argue loss minimisation when working on call for several years as on-call work loses its character of a bridging activity, which is why only temporary social protection is granted by unemployment insurance. At the same time, a notice on the part of the employee does not lead to shortening of insurance benefits with the unemployment insurance, since work on-call is considered unreasonable by the unemployment insurance and therefore cannot be considered unemployment caused by the employee. These two views are contradictory, since the unemployment insurance system encourages the acceptance of intermediate earnings and at the same time punishes employees if they accept such intermediary earnings.
Finally, it should be pointed out that there is a special feature of the on-call work in personnel leasing. According to the Employment Agency Act, a staff leasing company is obliged to agree on working hours with the employee in writing. For this reason, personnel leasing in the form of real on-call work is only feasible if the duration of the minimum working time is defined. The number of weekly or daily working hours must therefore be specified in the employment contract.
In summary, it should be noted that there is a lack of coherent criteria as to when on-call work results in enforceable entitlements. At the same time, on-call work is considered unreasonable, but still valid. This results of course in a potential discrimination against employees that are on-call who enjoy less social security protection. A naturally positive aspect is the work time flexibility which can also be in the employee's favour.
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.