Author: Lawyer Enrico Germano
The Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations) provides four articles (art. 329a CO – art. 329d CO) dedicated to the regulation of workers’ holidays
Art. 329a CO states that the employer must allow the employee during each year of service
at least four weeks’ holiday and five weeks’ holiday for employees under the age of 20. Whether an employee has not yet completed one year’s service, his holiday entitlement is fixed pro rata
According to art. 329b CO where in a given year of service the employee through his own fault
is prevented from working for more than a month in total, the employer may reduce his holiday entitlement by one-twelfth for each full month of absence.
Art. 329c CO establishes that the holiday entitlement for a given year of service is generally
granted during that year and at least two weeks of holiday must be taken consecutively. The employer determines the timing of holidays taking due account of the employee’s wishes to the extent these are compatible with the interests of the business or household.
As stated in art. 329d CO, which focuses on the salary during the holiday period, the employer must pay the employee the full salary due for the holiday entitlement and fair compensation for any lost benefits in kind. In fact, Swiss Law provides that during the employment relationship, the holiday entitlement may not be replaced by monetary payments or other benefits. Nevertheless, the Federal Court approved the legality of the payment of salary for holidays enjoyed (e.g. by means of the 8.33% increase of the hourly wage) in cases of highly irregular work or work of short duration.
It should also be underlined that if while on holiday, the employee carries out paid work for a third party which harms the employer’s legitimate interests, the employer may refuse to pay the salary due for the holidays concerned and may reclaim any salary already paid.
Persuant to art. 329 para. 3 CO, the employer must allow the employee the customary hours and
days off work. Also, once notice has been given to terminate the employment relationship, the employer is obligated to grant the time required to seek other employment to the employee.
In a recent 2020 ruling of the Federal Supreme Court, Switzerland’s highest court recalled that in the event that the employer terminates the employment contract with his employee and simultaneously releases the employee from his obligation to work, he may thereby demand that the holidays to which the employee is still entitled be taken during the period of termination. In any case, according to art. 329 para. 3 CO, the employer must consider the time the employee needs to look for another employment. The Federal Supreme Court recalled that the relationship between the duration of the notice period and the residual holiday period must be sufficiently important. Otherwise, holidays will have to be replaced with a monetary compensation. Residual holidays shall be taken if their duration does not exceed, approximately, a quarter or a third of the notice period. Remaining holidays may also be taken partly in kind and the remainder replaced by a monetary compensation.
