On-call work is a special form of part-time work arrangement under which neither the date nor the duration of the assignment are determined in advance. Currently, Switzerland has no legislation specific to on-call work and its legal doctrine provides limited definitions in this regard. While Swiss jurisprudence has developed certain rules on compensation for on-call work, such workers represented only 5.3% of all Swiss employees in 2017.
Atypical versus regular on-call work
In Switzerland, a distinction is made between atypical and regular on-call work. 'Atypical' on-call employees are not obliged to work (ie, the employer's call qualifies only as an offer that need not be accepted). 'Regular' on-call employees must accept their employer's call, even if they are unsure as to whether it relates to a work assignment.
Employees are considered on call for agreed periods during which they must be able and willing to accept calls. For example, if an employee agrees to accept calls at short notice only on Fridays during a working week, they would not be considered on call during the other working days.
The Public Swiss Labour Act provides for a special type of on-call work for emergency purposes. Accordingly, on-call duty performed in the workplace represents normal working time. If the employee does not have to be present for on-call duty, it is not considered working time.
Federal Supreme Court confirmation
In 1998 the Federal Supreme Court confirmed the admissibility of on-call work for the first time. The court stated that on-call hours must be compensated, but not necessarily at the same rate as standard pay. In general, the less free an employee is to perform other duties during on-call hours, the higher the compensation. For example, this may be determined based on the amount of notice provided: the shorter the notice period, the more limited the employee's private life and therefore the higher the compensation.
Further, compensation for on-call work may be included in employees' salaries. For such an agreement to be valid, the salary must be higher than that of non-on-call employees. The court also stated that, in the interest of employee protections against dismissal, on-call salaries must be paid even where an employment contract is terminated.
Unemployment insurance is usually not guaranteed for on-call employees unless it is written into their contract. Such employees may be protected from any loss of work or earnings under the Unemployment Insurance Act for periods in which they are not invited to work and thus receive no remuneration.
Jurisprudence suggests that this may be challenged if the hours worked on-call over a long period were regular and did not fluctuate significantly. However, this may be hard to determine, particularly if an employment relationship lasts less than six months. Fluctuations in longer employment relationships, in which an average number of hours worked per month can be calculated, cannot exceed 2% (either upwards or downwards) and any loss of work and earnings cannot be taken into account.
Any income that is earned from employment or temporary self-employment while receiving benefits is regarded as interim earning. Within the scope of the duty to minimise losses, recipients of unemployment benefits must take every reasonable step to avoid or reduce unemployment.
According to the Federal Supreme Court, it is no longer possible to argue loss minimisation when working on call for several years because on-call work loses its 'bridging activity' status, 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 shorten insurance benefits with regard to unemployment insurance, as on-call work is considered unreasonable by unemployment insurance standards and therefore cannot be considered unemployment caused by the employee. However, these two positions are contradictory because although the unemployment insurance system encourages the acceptance of intermediate earnings, it also punishes employees if they accept such intermediary earnings.
According to the Employment Agency Act, staff-leasing companies must agree working hours with employees in writing. For this reason, personnel leasing in terms of regular on-call work is feasible only if the duration of the minimum working time is defined. Therefore, employment contracts must specify the number of weekly or daily working hours.
On the one hand, there is a lack of coherent criteria as to when on-call work results in enforceable entitlements. Further, it may be considered unreasonable (albeit valid) in certain circumstances and on-call employees, who have less social security protection, are more likely to face discrimination. On the other hand, on-call work is an increasingly favourable option for employees who require greater work-life flexibility.
For further information on this topic please contact Natalija Matic at Rihm Rechtsanwälte by telephone (+41 44 377 77 20) or email ([email protected]). The Rihm Rechtsanwälte website can be accessed at www.rihm-law.ch.
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