The so-called burn-out syndrome is a medical condition that has become increasingly common in recent years and is a frequently discussed topic. So far, there have been practically no liability claims by employees against their (former) employers in connection with burn-outs due to poor work organisation or breaches of duty of care in Switzerland. In December 2019, the Federal Administrative Court has now ruled in favour of such a liability suit, at least in the case of the employer's breach of duty of care (Federal Administrative Court ruling of 16 December 2019, A-6750/2018). The employment relationship on which the action was based was indeed of a public-law nature. However, the decision nevertheless allows conclusions to be drawn about the trends in such actions for damages and/or moral compensation as well as the measures to be taken by employers in burn-out cases in private-law employment relationships.

Summary of the ruling of the Federal Administrative Court

The employee was employed for several years as a lawyer at the State Secretariat for Migration ("SEM"), where her daily work was characterised by high time and deadline pressure. On several occasions, she complained to her employer about inadequate work organisation in various respects and what she considered to be an excessive workload. As a result of this situation she was under medical treatment. Within a period of two years and several months, the employee was sick for 66 days and visited the doctor more than 70 times. The SEM was aware of the need for action with regard to the workload and the resource situation. It also took various, but rather general, organisational measures. These included a review of the resource burden and the creation of two additional jobs, but only shortly before the employee became permanently unable to work (burn-out).

Against this background, the action for damages and moral compensation brought by the employee for breach of duty of care was dismissed by the first instance. The court considered the measures taken by the SEM to be appropriate and targeted. In addition, the employee had not complied with her notification obligations because she had not made any concrete suggestions regarding the organisation of work or, for example, had not requested a reduction in the workload. The second instance, the Federal Administrative Court, affirmed that the SEM had breached its duty of care. Since there were various work-related stress factors (time and deadline pressure, insufficient personnel resources) which, according to experience, were likely to impair mental health, the SEM would have been obliged to conduct a so-called occupational health assessment. Moreover, the other measures taken were not suitable, insufficient or too late. In contrast, the employee had sufficiently complied with her duty of notification. However, the amount of the employee's claim for damages and satisfaction is still to be decided and will be examined in the context of the dismissal of the case by the lower court. The question of adequate causality will be clarified and it will be examined in particular whether the permanent health disorder of the employee is also due to other factors, such as pre-existing mental illness or problems/burdens in her private environment.

Definition of Burn-out

According to the World Health Organization (WHO), burnout is a syndrome that occurs as a result of chronic stress in the workplace that has not been successfully managed. It is characterized by three dimensions: 1) feelings of energy depletion or exhaustion, 2) increased mental distance from work or feelings of negativism or cynicism about work, and 3) reduced professional efficacy.

According to Art. 328 of the Swiss Code of Obligations, the employer must take due account of the employee's health and, in order to protect the employee's health and personal integrity, must take the measures which are necessary according to experience, applicable according to the state of the art and appropriate to the conditions of the business, insofar as can reasonably be expected. Art. 3 para. 3 of the Ordinance 3 of the Labour Code also specifies, with regard to the employer's duty of care, that an occupational medical examination must be carried out if there are indications that the employee's health is impaired by the work he/she carries out.

Employers thus have a duty to protect (duty to act and investigate), especially with regard to employees who are in poor health. They must take reasonable measures to enable them to continue their employment, not to further impair their health or to prevent the occurrence of health problems. In our opinion, this applies all the more in the case of a burn-out which is solely due to the work-related situation or overwork. Nevertheless, there are also limits to the employer's obligations to investigate and act. These only exist if they know or should know about the work overload or already existing health impairment of the employee. Accordingly, based on the duty of loyalty (Art. 321a CO), the employee has at least the obligation (sometimes referred to as a duty of notification) to inform the employer of any health impairment or permanent, excessive strain. Only if the employer has violated its duty of care does an action for damages or moral compensation by an employee have any chance of success.

Conclusion / Action to be taken

In the above-mentioned partial verdict, the Federal Administrative Court found it decisive that the employer was aware of the overburdening of the employees and yet did not react promptly and appropriately. In the case of a known work overload or even an already existing burn-out, the court interpreted the employer's duty of investigation and action accordingly broadly. The employer is therefore obliged to act as soon as employees actively point out a permanent, excessive workload or if the circumstances (frequent inability to work, reduced ability to concentrate) indicate that such a workload is likely to occur. The measures to be taken must always be tailored to the individual case, but may include the following in particular:

  • carrying out a so-called occupational health assessment;
  • joint discussions with the employees concerned to determine appropriate measures;
  • creation of additional positions and clear rules on deputising and the allocation of tasks;
  • granting of unpaid leave or agreement of a lower workload (both only with the employee's consent);
  • creation of internal points of contact.

Since, according to a stress study by SECO, more than a quarter of employees are reported to be showing the first signs of burn-out, employers should generally pay attention to good work organisation (avoiding excessive, one-sided demands, good management behaviour, attention to work-life balance, etc.) and targeted health management. On the one hand, this can prevent compensation payments due to a breach of duty of care. On the other hand, it also reduces absenteeism and health-related reductions in performance, thus lowering costs and increasing productivity.