The trend towards working from home keeps continuing. In this article, we shed light on the legal situation of this increasingly popular work model in Switzerland.
Switzerland is an attractive place for employees, not least because of its high salaries and low-income taxation. At the same time, the Swiss economy needs skilled professionals and the Covid-19 pandemic in particular has shown how acute the shortage of qualified employees is in certain sectors. If you are considering moving to Switzerland, the following article will provide you with information on the topic of working from home.
What is a “home office”?
It might be confusing to native English speakers, but “working from home” (WFH) is generally referred to as “home office” by German speakers in Switzerland and as “télétravail” in the French speaking parts. It has nothing to do with the UK’s Home Office.
Rights and obligations in case of WFH
Principle
There is no statutory right to WFH. Neither can an employer instruct its employees to work from home without reason and contrary to the agreement of a different place of work in the employment contract. If an employee wishes to work permanently or regularly in home office, this requires a corresponding contractual agreement with the employer.
Work tools and materials, compensation and expenses
If an employee, with the employer’s consent, uses his own work tools (e.g. laptop or mobile phone) or materials to perform work in home office, he is entitled to a reasonable compensation for this, unless otherwise provided by agreement or custom. In addition, the employee may be entitled to compensation if he uses a room of his private apartment or for instance, a part of his living room, for WFH. This is exclusively applicable if no space is available for the employee in the employer’s office premises. In this situation, the employer must also bear a share of the costs for electricity or internet. It is also possible in this case to agree on a daily, weekly or monthly lump sum for expenses.
Prevention of work performance in “home office”
If the employer allows its employees to WFH, it also bears the associated risks. This applies, for example, to disruptions such as a power outage or a failure of the internet connection during which no work can be performed from home. This is subject to the condition that the employee himself is not responsible for the disruption. In such cases, he must also return to the office if this is possible within a reasonable period of time.
Liability of employees
An employee may be liable for the loss or intentional or negligent damage of work tools and materials, as well as for the loss or theft of internal data and documents. It is therefore advisable to reach a clear agreement with the employer regarding the consequences and the procedure to be followed in the event of such loss or damage.
Social security law
According to a principle of the Agreement on the Free Movement of Persons and the EFTA-Agreement, an employee who works a “substantial part” of his job – i.e. 25% or more – in the country of residence must also be insured there. In view of the changed working reality due to the Covid-19 pandemic, the placement rules in the area of social security under the Agreement on the Free Movement of Persons and the EFTA-Agreement were interpreted flexibly in the case of WFH. Thus, a worker employed by a Swiss employer in the EU/EFTA area continues to be subject to Swiss social security law, even if he or she works a “substantial part” in home office in the country of residence. Accordingly, the employee does not have to prove to foreign authorities that Swiss social security law applies to him/her by means of a certificate of secondment (A1 form).
This flexible application of the placement rules was extended on June 14th, 2022, until December 31st, 2022.
A corresponding extension of this flexible application of the placement rules also takes place within the framework of the Agreement on the Free Movement of Persons and the EFTA-Agreement and thus equally applies to Switzerland.
Efforts are currently underway to make the social security placement rules more flexible as of January 1st, 2023, so that a certain proportion of WFH can be carried out in the country of residence without changing the competence for social security.
Place of jurisdiction
In labour disputes, the usual place of work establishes a place of jurisdiction. The predominant activity in home office abroad can therefore entail the jurisdiction of a foreign court, which gives the employee the possibility to sue his Swiss employer at his place of residence and work. As a consequence, it cannot be excluded that the foreign judge will apply his own labour law despite a choice of law clause to the contrary, insofar as it is more favourable for the employee. Especially in the states bordering Switzerland, this means a much more employee-friendly labour law.
Risk of a permanent establishment for Swiss employers
Employees who work for a longer period of time in home office in their country of residence (and not in the employer’s country) can, under certain circumstances, establish a permanent establishment for the employer there. This may be the case, for example, if the employee performs management functions or is authorised to conclude contracts on behalf of the employer.
In order to avoid an additional tax burden and administrative effort due to the establishment of a permanent establishment through WFH, it is necessary for the employer to check and, if necessary, even restrict the activities of the employees concerned.
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