In recent months we have been privileged to have sitting with us in our Labour & Employment team Anela Lucic, Employment attorney at leading Swiss commercial lawyers Vischer. After an eye-opening glimpse into English employment law and practice, here is Anela’s brief summary of the Swiss position.
By David Whincup The National Law Review, Aug. 23, 2019
If you have business operations with employees in Switzerland and an employment dispute arises that you cannot resolve by agreement, you may end up in court. This blog provides employers with an overview on selected practical points of individual employment litigation in Switzerland.
Mandatory Conciliation Procedure
Prior to lodging court proceedings, the parties must try to settle the contentious matter amicably. The first and mandatory step towards litigation in Switzerland is the initiation of a conciliation procedure. Also, the submission of this request will ‘stop the clock’ on the relevant statutes of limitations and statutory time-limits. As a general rule, the parties must appear personally at the conciliation hearing. It is, however, permissible to be accompanied by a legal representative.
Note that conciliators generally have no decision-making competence but are usually – with a certain degree of success – eager to conclude the matter by way of a mutual settlement agreement between the parties. If the conciliation procedure fails, the claimant receives a so-called ‘authorisation to proceed’ and may initiate court proceedings before the court within three months.
Court proceedings are started by submitting a statement of claim. The level of detail required in that statement depends on the amount in dispute: where it is more than CHF 30’000 the so-called ‘ordinary procedure’ applies. In such cases the statement of claim must contain the parties’ names and their representatives (if any); the “prayers for relief” (i.e. what the claimant wants); a statement on the value in dispute; the factual allegations; notice of evidence offered for each allegation of fact; the date and signature.
The court will then actively manage the proceedings and, in a first step, request from the claimant an advance payment of court fees (which depend on the value at dispute). Once the advance payment is received, the court will determine the conduct of the proceedings, i.e. exchange of briefs, deadline for the respondent to submit its response, etc. The court will usually rule on any other case management points, e.g. specific procedure of evidence (the questioning of witnesses, appointment of experts, etc.), procedural restraints, or hearings and associated logistics, only once the parties have exchanged their written briefs.
The general standard of briefs is high because the parties bear the obligation to substantiate and/or contest each allegation of fact, and to bring the relevant evidence that supports their case. Also, their ability to adduce new facts and evidence or to amend the prayers for relief becomes limited at a relatively early stage. In any case, it is therefore advisable to provide your lawyer as early and as comprehensively as possible with all potentially relevant information and documents.
Employment Litigation for up to CHF 30’000
In employment matters worth less than CHF 30’000 the so-called ‘simplified procedure’ applies. This facilitates access to litigation by the following: the statement of claim does not need to include a detailed statement of the grounds for the claims; proceedings are generally free of charge, i.e. no advance payments on court fees are required; the court establishes the facts ex officio and evaluates the evidence at its own discretion. The court therefore does not have to decide solely on the evidence submitted by the parties and is also not bound by the parties’ requests for evidence; finally, the matter is concluded at only one hearing to the extent possible.
Upon submission of the simplified statement of claim, the court will send a notification to the respondent together with a copy of the statement of claim. If the court deems an exchange of written briefs unnecessary it will summon the parties to an oral hearing. It is therefore possible that an employer only gets to know the full grounds for the employee’s claim at the first oral hearing at which it is nonetheless expected to provide a comprehensive response and evidence in support of its case.
In practice, it is permissible and not uncommon for employees to make only part of their alleged claim, i.e. limited to a value in dispute of up to CHF 30’000 (with the reservation of subsequent action for the rest of their claim) in order to benefit from the simplified procedure’s advantages, in particular the moment of surprise by not providing the full grounds for the claim in the statement of claim but rather only orally in the first and only hearing.
Employment Litigation on Gender Equality
The enforcement of certain individual employment claims under the Swiss Act on Gender Equality is facilitated further by certain additional features: the conciliation procedure is conducted by a conciliation body that comprises an equal number of representatives of the employer and employee and of the public and private sectors – also, the genders must be equally represented; in court proceedings the simplified procedure applies regardless of the value in dispute; a reduced (or even reversed) burden of proof applies, i.e. the alleged discrimination by the employer does not have to be proven by the affected employee – instead it suffices that the discrimination can be made arguable by the employee. It is then up to the employer to prove that it did not discriminate or that the difference in treatment can be justified on objective reasons. If the employer fails to provide such evidence, the claim must be upheld.
Documents and Witnesses
There is no document disclosure procedure or discovery in Swiss law as practised in the UK or other common law jurisdictions. The parties are obliged to submit the relevant documents in support of their case. Also, the court may order parties to disclose certain documents. However, the addition of new documents generally becomes restricted at a certain stage of the proceedings.
Further, there are no written witness statements nor are any witness statements exchanged beforehand as the parties and lawyers are generally not allowed to discuss the case with non-party witnesses prior to their testimony in court. Once a person is summoned by the court to a hearing to be questioned as witness, it is the court and not the parties’ counsels which primarily asks the questions on their relationship to the parties (if any), credibility, and factual observations. There is no cross-examination in Swiss court proceedings. The parties’ counsels may only ask further questions on the subject matter once the court has concluded its own examination. Also, individual parties or party representatives cannot be questioned in the capacity of a witness but rather by way of a party interrogation. Finally, foreign domiciled witnesses cannot be summoned before a Swiss court. The court may instead order a questioning via international judicial assistance before the competent authority of the witness’ country of residence. It is therefore advisable to choose wisely the witnesses to be offered to the court.
Small Country but Multi-Lingual
Switzerland is a multi-lingual country. There are four official languages: German, French, Italian and Romansh. It is determined at a cantonal or community level which of these languages applies, which is why the language of the specific proceedings is dependent on the venue. Although many publications by the Swiss government – and even laws – have been published in English for the purpose of information and without legal force for quite some time now, it is not possible to conduct proceedings in English. However, it is possible to request the attendance of an interpreter at hearings for foreign language speaking parties.
The employer is not required to provide employment documents in the applicable official language for the conclusion, execution and termination of the employment. In fact, since English is widely used as the corporate language, disputes of interpretation arising from English employment documents, in particular in regard to bonus/equity incentive plans, are common in practice. However, in court proceedings the court may request translations of any such documents into the official language of the proceedings.
Costs and Indemnification for Legal Fees
As a general rule, legal costs are distributed amongst the parties according to the outcome of the proceedings. This means, in ordinary proceedings that are not free of charge, the prevailing party doesn’t pay the court fees. However, a claimant who has to advance the court fees can only request reimbursement from the losing party for their costs and cannot claim the advance payment back from the court. In any case, i.e. in both ordinary proceedings and those that are free of charge, the winner is entitled to an indemnification for its legal fees in accordance with the cantonal tariffs. Usually, this covers only a part of the actual legal fees incurred.
Parties who do not have the financial resources to fund litigation may apply for legal aid if their case appears arguable. If legal aid is granted the applying party is exempt from the payment of court fees, advance payments and any securities – but legal aid does not cover any indemnification for legal fees owed to the prevailing party.
Note that in Switzerland personal legal insurance is therefore unsurprisingly popular and reasonably affordable. Many employees take out legal expense insurance in case of employment disputes. Usually such insurance solutions provide for coverage of the fees for legal advice and representation in court, court fees, and indemnification for counterparty’s legal fees. This enables employees to take legal action with less exposure to financial loss