At the end of May 2020, various media in Switzerland and throughout the world reported of the Swiss Federal Tribunal’s ruling obliging the employer to contribute to employees’ rent during a period of telework. Given the administrative decision to make use of telework if possible during the lockdown, this decision generated concerns for employers globally.

However, the headlines were misleading. In fact, the Tribunal decision referred to was published on 23 April 2019 (TF 4A_533/2018), well before the Covid-19 outbreak.  The case concerned an accountant whose employer did provide neither a physical office nor any place to store work files, which was necessary for performing the job. Based on the particular circumstances, the Tribunal ordered the employer contribute to the rental payment of the employee who was working from home.

The media coverage of this old decision triggered a national discussion the meaning of Article 327a al.1 of Civil Code, which establishes the obligation for employers to reimburse their employees for all expenses incurred to carry out their work.

The Juridical service of the Federation des Entreprises Romandes (SAJEC-FER – Romand Business Federation) clarified that this obligation must be contextualised. There are three possible situations:

• Employees are required to work from home upon request of the employers;
• Employees decide and request the employer to telework; or
• Employees are obliged to telework after a decision of the administrative authorities (eg. in case of pandemic)

Article 327a al.1 of the Civil Code is applicable in the first and third situations, while it does not apply if the employees request to work from home.

However, in case where the authorities impose compulsory teleworking on the entire labour force, the employers must monitor and bear the costs of the health and safety of employees, as well as contribute to the tools necessary to perform the work at home ( eg. laptop, printer, additional phone calls etc). Fixed costs, like Internet connection or the rent are not included in this contribution, since the employee would in any case bear those costs on their own.

In Switzerland, the pandemic obliged teleworking for all employees in the service sector, including the banking industry.

According to Olivia Guyot Unger, SAJEC Director, “independently from the Coronavirus pandemic, there must be incentives to telework, as it provides many advantages, notably in terms of time saved and ecological impact”. 

On 24 June 2020, the Group of CEOs (Cercle of Dirigeants d'Entreprise - CDE) organised a conference on teleworking, where Blaise Matthey, FER Secretary General, underlined that “the possibility for employees to work from home allowed many companies to survive during the Covid-19 crisis. Without telework, everything would have been much more difficult, since it allowed us to ensure the maintenance of a large part of business activities, and therefore also the wage and social structure of the country”.

Blaise Matthey stated that “fears, however, that a phenomenon of dropping out will occur between those who have taken the digitalization train in motion (and therefore have telework practices) and those who have not managed to adapt.” He expressed his hopes that “this second category will manage follow the digital transformation”.

In any case, a recent survey conducted by Swiss trade union, Syndicom Gfs Berne, indicated that79% of employees who were forced to telework would like to continue to do so.