New rules on parental allowance and parental leave

Since 1 July 2015, employees have had more flexibility in relation to their parental leave. Employees can now split their parental leave into three parts (instead of two) and can take up to 24 (instead of 12) months’ parental leave, between their child’s 3rd and 8th birthdays. This only applies to employees whose children were born on or after 1 July 2015.

Court awards damages for secret video recording of employee

In a case involving an employer which engaged a private investigator to monitor one of its employees, the German Federal Employment Court ruled earlier this year that the monitored employee was entitled to damages if his general right to privacy was violated by the secret video surveillance.

The employee was unable to work due to illness and verified this with several medical certificates. However, the employer did not trust what was stated in these certificates and instructed a private investigator to prove that the employee was capable of working.

The court stated that because of the high evidential value of medical certificates, the employer must have reasonable doubts as to their legitimacy to justify the surveillance, which was not the case here.

It is important to note that the amount that can be claimed in damages is limited. In this case, the court awarded EUR 1,000 (approximately USD 1,120).


Court ruling highlights the importance of responsible working conditions

A recent highly publicised case is a reminder of how important it is for employers, as well as certain individuals representing the employer, to be aware of their responsibilities under the work environment regulations and to take the necessary measures. An employee who suffered from mental illness took his life shortly after he received a notice of his planned summary dismissal.

The court held that two senior managers had failed in their obligations relating to the work environment, which included considering the possibilities of adapting work conditions and conducting a full investigation into the employee’s social issues at work. However, in this case, the court concluded that the managers had not been negligent to the extent that their conduct constituted criminal negligence, so they were not found individually responsible for the employee’s death.


Supreme Court rules that bonus payments are discretionary

According to a recent Supreme Court decision, bonus payments are considered discretionary (if this is stated in the employment contract) regardless of whether the bonus amount exceeds the employee’s base salary – if their base salary amounts to CHF 354,000 or more (approximately USD 364,000) per year.

Until now, bonus payments were regarded as salary and therefore non-discretionary (regardless of what was stated in the employment contract) if the bonus exceeded the base salary (for example if the base salary was CHF 150,000 and the bonus CHF 200,000, the bonus automatically qualified as non-discretionary pay).

Law amends obligation to record working time

Under Swiss law, employers must record and monitor working hours quite strictly. However, because in reality this does not always happen, the legal requirements are being modified and made less stringent. In particular, employees earning at least CHF 120,000 (approximately USD 123,000) per year and are permitted to work flexibly will be exempt from the obligation to record their working time, provided this exemption is agreed in a collective bargaining agreement. This change is expected to come into force before the end of 2015.

Stephan Swinkels