Swiss social security provides financial benefits to mitigate social risks, e.g. pensions, loss of earnings compensation and family allowances, and includes sickness and accident cover.
Old-Age and Survivors' Insurance (OASI) is the primary pillar of Switzerland's old-age and survivors' benefits scheme (Pillar 1). OASI is intended to meet the basic needs of insured individuals upon retirement or in the event of death. More specifically, OASI provides an annuity on retirement and widow's, widower's and orphan's pensions in the event of the insured individual's death.
Invalidity insurance (IV) provides the primary disability benefit available in Switzerland (Pillar 1). IV is intended to secure the livelihoods of insured individuals who have become disabled and, in particular, pays out a disability pension.
The loss of earnings compensation (EO) scheme pays fair compensation for loss of earnings and confers the right to military service, maternity and paternity, care (i.e. parents who are the carers of a seriously ill underage child) and adoption allowances.
Unemployment insurance (UI) is intended to provide an adequate income to individuals who lose their job and confers the right to unemployment benefits.
The purpose of family allowances is to help parents with the cost of raising children. They include child and vocational education and training allowances and, in some cantons, birth and adoption allowances.
Occupational pension provision constitutes Pillar 2 of the social security system. It complements OASI/IV benefits and is intended to ensure that retirees can maintain their pre-retirement standard of living. It confers the right to retirement and survivors' benefits (widow's, widower's and orphan's pensions) and invalidity benefits.
Accident insurance (AI) provides compensation for loss suffered as a result of occupational diseases or accidents. It covers medical and hospital expenses incurred as a result of occupational accidents, occupational diseases and non-occupational accidents, and also pays out a daily allowance.
Health insurance provides universal access to basic medical care. Subject to the deductible under the insurance policy and a 10% copayment payable by the insured person, health insurance covers medical and hospital costs in the event of non-occupational sickness, accidents (unless accident insurance cover is in place) and maternity.
Exemption from social security provisions
The Vienna Convention on Diplomatic Relations (VCDR) and the Vienna Convention on Consular Relations (VCCR) establish the general principle of exemption from social security provisions in effect in the receiving state. However, the Conventions provide that the exemption does not apply to private household employees (Art. 33 paras 2 and 3, VCDR and Art. 48 paras 2 and 3 VCCR), members of staff who are nationals of or permanently resident in the receiving state (Art. 38 para. 2 VCDR) and bilateral or multilateral agreements concerning social security (Art. 33 para. 5 VCDR).
It is therefore important to draw a distinction between:
As the Federal Council does not wish to exclude any of the persons listed above from health cover, anyone may apply to join the Swiss health insurance system. Article 7 paragraph 6 of the HIO states that persons wishing to take out Swiss health insurance on a voluntary basis must do so within six months of receiving their legitimation card.
In such cases, the cover will take effect retroactively i.e. from the date on which the legitimation card was received, and will expire when the person either leaves their post in Switzerland, opts out of the insurance scheme, or passes away. If the person decides to opt out, a new application cannot be made unless there is a special reason. Requests for insurance cover on a voluntary basis must be submitted to the cantonal authority where the person lives.
Local personnel are not considered as transferable staff of the sending state (foreign state). There are two different categories:
Swiss nationals or persons who, at the time of their employment, are permanently resident in Switzerland, i.e. persons holding a residence or settlement permit (B or C work permit).
Foreign nationals who are not permanently resident in Switzerland at the time of their employment and hold an FDFA legitimation card type KE. The FDFA must be notified of the arrival of staff who fall under this category before they arrive in Switzerland, in the same way the sending state does for other staff.
A foreign representation in Switzerland has no legal personality; it is an organ of the foreign state it represents. An employment contract signed by a diplomatic mission or consular post on behalf of this foreign state is therefore binding on that state. In this way, any dispute to be brought against the foreign state will be done so through diplomatic channels (provided the state in question has its address for service here).
Local staff (hired in the sending state) are subject to Swiss labour law (see Swiss Code of Obligations (CO), Section II: Title Ten: The Employment Contract, Art. 319–343), unless both employer and employee determine that another law will apply (law of the sending state) – provided this does not have any negative effects for the employee compared to Swiss law. The option to choose another law is set out under Article 121 of the Federal Act on Private International Law (PILA). In such cases, this must be clearly stated in the written employment contract. If there is no written employment contract specifying which law is applicable, Swiss law shall apply.
Employees' wages are generally subject to freedom of contract under Swiss law, with two major exceptions:
A collective employment contract (de) as set out under Article 356 ff of the COA collective employment contract is an agreement between employers or employers' associations and workers' associations regulating working conditions, including pay, and the relationship between the parties to the agreement. This type of agreement has a wide scope of application.
A standard employment contract (de) as set out under Article 359 ff of the CO. This type of contract has a set of binding rules issued by the state and governs employment relationships in specific occupations requiring regulation.
Wages may be freely agreed under the standard employment contract, provided there is no clear discrepancy between the work to be performed and the remuneration. Any such discrepancy would constitute an abuse under Article 21 paragraph 1 of the CO and result in the pay clause being declared invalid by a Swiss court. If the wage in question has not been agreed in writing, the court will decide based on current practices in the sector concerned and, where appropriate, on the type of contract applicable (collective or standard employment contract).
Under Swiss law, written employment contracts are not mandatory. If there is no written employment contract and an employment tribunal has to issue a judgment, it will take into account the relevant legal provisions i.e. the Swiss Code of Obligations (Section II: Title Ten: The Employment Contract, Art. 319–343) and the Federal Act on Employment in Business, Trade and Industry (Employment Act, EmpA). This does not apply to staff of diplomatic missions and consular posts of foreign states in Switzerland insofar as they are employed to perform sovereign duties or their employment relationship is governed by the law of their sending state (Art. 3 let. b of the EmpA, Art. 8 of Ordinance 1 to the Employment Act, EmpO 1).
Such persons are therefore strongly encouraged to conclude an employment contract in writing, which should specify no less than the key information (concerning salary, function, working hours, holidays, other leave, etc.) and comply with the minimum conditions as set out in the CO and EmpA. More detailed employment contracts must include the following:
job description and function
start date
probation period (cf. Art. 335b of the CO)
contract duration (fixed term: cf. Art. 334 of the CO, indefinite duration: cf. Art. 335 of the CO)
gross monthly salary (cf. Art. 322, 322d and 323 of the CO)
insurance (see factsheet)
holidays and leave (cf. Art. 329 and 329a of the CO), public holidays (cf. Art. 20a of the EmpA)
working time (cf. Art. 9 of the EmpA)
overtime (cf. Art. 321c of the CO)
termination of employment (cf. Art. 334, 335, 225a, 335b, 335c, 336, 336a, 336b, 336c, 337, 337a, 337b, 337c, 337d of the CO)
If a fixed-term contract comes to an end, both parties may expressly agree to extending the employment relationship by concluding a new fixed-term contract. However, renewing fixed-term contracts repeatedly is incompatible with the prohibition on chain contracts and, according to the case law, constitutes a violation of Article 2 paragraph 2 of the Swiss Civil Code (CC). Concluding several fixed-terms contracts in a row is considered an abuse of rights if the employer's intention is to avoid obligations protecting staff against unfair dismissal or termination at an inopportune juncture, for example, or to prevent the employee from obtaining certain rights which require a minimum duration of the working relationship – such as the right to salary payment in case of incapacity to work or during leave.
In Switzerland, Federal Supreme Court case law holds that there is generally no abuse of rights if a maximum of two fixed-term contracts are concluded in a row. However, the number of contracts is not in and of itself sufficient to determine whether there has been an abuse of rights. Chain contracts are therefore allowed if the following three conditions are met:
They cover completely different employment relationships, even if the parties are the same
There are particular circumstances justifying the conclusion of several fixed-term contracts in a row,
if said circumstances correspond to a need justified by objective reasons
A fixed-term contract tacitly extended beyond the agreed duration is deemed to be an open-ended employment relationship (Art. 334 para. 2 of the CO).
An employee's obligations are primarily governed by Article 321 ff of the CO.
Staff are obliged to carry out the work assigned to them with due care and loyally safeguard the employer’s legitimate interests, treating all material placed at their disposal with due care (Art. 321a para. 1 and 2 of the CO).
They must carry out the contractually assumed tasks in person (Art. 321 of the CO) and avoid causing any damage in the performance of this work. An employee must also maintain the good reputation of the company they work for. They have a duty of loyalty (Art. 321a para. 3 of the CO) and must not reveal manufacturing or trade secrets even after the end of the employment relationship (Art. 321a para. 4 of the CO).
Sums of money received from third parties in the performance of contractual activities must be handed over to the employer immediately (Art. 321b para. 1 of the CO) as well as all work produced in the course of said activities (Art. 321b para. 2 of the CO). An employee may be required to perform overtime to the extent that they are able and may conscionably be expected to do so (Art. 321c of the CO).
They are also liable for any damage they cause to the employer whether wilfully or by negligence (Art. 321e para. 1 of the CO). The extent of the duty of care owed by the employee is determined by the individual employment contract, taking due account of the occupational risk, level of training and technical knowledge associated with the work as well as the employee’s aptitudes and skills of which the employer was or should have been aware (Art. 321e para. 2 of the CO).
Staff are also obliged to follow the employer's directives in this respect (Art. 10 of the EmpO 3 and Art. 11 of the Accident Prevention Ordinance, APO).
They are entitled to receive their wages at the end of each month (Art. 323 para. 1 of the CO), to respect for their personality, integrity, privacy, health and safety, as well as all other rights granted them by their individual employment contract, collective employment contract, standard employment contract or the law (Art. 6 of the EmpA, Art. 2 of the EmpO 3, Art. 328 of the CO).
In addition, the EmpA has provisions on health and safety for employees. Staff are also obliged to assist the employer in applying these health and safety rules (Art. 6 para. 3 of the EmpA).
An employer's obligations are primarily governed by Article 322 ff of the CO.
This includes general responsibility for selecting, training and supervising staff. Employers must also assume the economic risks associated with the proper functioning of the entity in question (e.g. diplomatic mission or permanent representation) and must provide the work that has been agreed.
They must protect the life, physical and psychological integrity, privacy, health (Art. 6 of the EmpA, Art. 2 and 5 para. 2 of the EmpO 3, Art. 328 of the CO, Art. 27 and 28 of the CC) and safety of their staff (Art. 82 of the Accident Insurance Act, AIA, and of the Occupational Pensions Act, OPA).
An employer must take all measures that are shown by experience to be necessary, that are feasible using the latest technology and that are appropriate to the particular circumstances of the workplace or the household, provided such measures may be required of it based on the employment relationship and the nature of the work.
Employers are entitled to set requirements regarding work performance or conduct. To this end, they may issue directives or instructions (Art. 321d para. 1 of the CO) and must, unless otherwise agreed or established, provide the employee with the tools and materials that the work requires (Art. 327 paras. 1 and 2 of the CO).
An employer must also meet all legal obligations, including collecting and paying social insurance contributions. In addition, they must pay the agreed or customary salary or the salary that is fixed by the standard employment contract or collective employment contract (Art. 322 of the CO).
The EmpA also has health and safety provisions for employees. An employer must take all measures that are shown by experience to be necessary, that are feasible using the latest technology and that are appropriate to the particular circumstances of the workplace (Art. 6 of the EmpA).
Employment contracts are governed by Articles 319 to 362 of the Swiss Code of Obligations (CO).
The Employment Act (EmpA) and its implementation ordinances also contain provisions to protect employees, such as workplace health and safety, maximum working hours, breaks, working at night or on Sundays, shift work, as well as special provisions for pregnant women and workers under the age of 18.
Working conditions for mission staff with Swiss nationality or permanent residence in Switzerland are also set out under Article 18 of the Host State Ordinance.
They are also subject to the following rules concerning the Swiss social insurance system:
Swiss local staff or employees with a B or C permit are subject to the compulsory insurance scheme for old-age and survivors' pension and disability (AHV/IV – AVS/AI), loss of earnings (EO – APG), unemployment insurance (AV – AC) and family allowances. They must make sure that they are insured and pay the relevant contributions themselves. Diplomatic and consular representations are not required to pay contributions as employers.
There is no insurance requirement for local staff with a KE legitimation card.
