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Switzerland: Recruitment and selection

Updating author: Marco Toni

Summary

  • Employers are prohibited from discriminating in recruitment on the grounds of an applicant's sex, marital status (including civil partnership status), family situation or pregnancy. (See Discrimination)
  • The general statutory prohibition of discrimination in recruitment applies to job advertisements. (See Advertising vacancies)
  • In the selection process, the employer must not ask questions of candidates that are discriminatory. (See Selection)
  • When an employer offers a candidate a position, negotiations over the employment contract are deemed to commence. (See Job offers)
  • The employment of children under the age of 15 is normally prohibited. (See Young people and children)
  • Nationals of the other European Free Trade Association countries, the 25 pre-2007 EU member states and from 1 June 2016, nationals of Bulgaria and Romania, require a residence permit (which also serves as a work permit) to work in Switzerland for more than three months in a calendar year. (See Foreign nationals)

Discrimination

Employers are prohibited from discriminating in recruitment on the grounds of an applicant's sex, marital status (including civil partnership status), family situation or pregnancy.

A job applicant who believes that he or she has been refused employment on grounds of sex, marital status, family situation or pregnancy is entitled to ask the employer for a written justification of the decision not to recruit him or her. Within three months of the refusal of employment, the applicant may bring a court case seeking financial compensation. In the court proceedings, a failure to provide written justification of the decision not to recruit, when requested by the applicant, may count against the employer. If the applicant is successful, the maximum compensation is three months' pay (the expected pay for the job that the applicant has been refused). If two or more applicants successfully claim that they have been discriminated against in respect of recruitment to the same position, this maximum amount of compensation is shared among them. An applicant who has suffered discrimination can also bring a separate case seeking damages for financial loss, pain or suffering. However, a court cannot order an employer to employ an applicant who has suffered discrimination.

Employers have a general statutory duty to protect and respect the "personality" of employees in employment relations. This includes protecting employees from discrimination, and an employer must not treat particular employees or job applicants less favourably than others without objective, justified reasons (see Switzerland: Equal opportunities > General). In recruitment terms, this translates into a prohibition of discrimination against job applicants on grounds including, in addition to sex:

  • disability;
  • race;
  • age;
  • sexual orientation; and
  • religion/belief or lack of any religion/belief.

Advertising vacancies

The general statutory prohibition of discrimination in recruitment (see Discrimination) applies to job advertisements.

An advertisement indicating that the vacancy is open only to people with a particular protected characteristic may be lawful only if possession of that characteristic is essential for the job concerned. For example, an employer could advertise a job in a single-sex institution such as a prison as being open only to women or only to men. Further, an advertisement may be indirectly discriminatory if it refers to criteria that in practice are mainly met by people of, for example, a particular race or age.

With regard to sex discrimination, a discriminatory job advertisement does not in itself entitle a job applicant or potential applicant to initiate court proceedings seeking compensation. However, such an advertisement may serve as evidence if a candidate is not employed after formally applying for the job and brings a case claiming sex discrimination (see Discrimination).

Selection

In the selection process, the employer must not ask questions of candidates that are discriminatory (see Discrimination). Otherwise, the employer is generally allowed to ask the applicant any questions in direct connection with the position. So long as the information is relevant to judge the ability of the person to perform well in the position, it is lawful to ask for it. For example, it is permissible to ask an applicant for a high-level position in an accounting department to provide proof of whether or not he or she has a criminal record (in the form of an extract from the official register of criminal records). However, this information would be less likely to be considered relevant in the case of a candidate applying for the position of a temporary office assistant.

Questions regarding religion, personal health issues and family issues are usually not permitted or permitted only to a very limited extent for very specific positions.

If an employer wishes to obtain references from former employers, it must obtain the candidate's permission.

Aptitude tests and selection tests such as psychological or graphological assessments must be performed by experts and must be related to the prospective employment. The employee must be given adequate prior information as to the purpose and the method of the testing.

If an employer believes that a candidate is not suitable for the vacant position but may be suitable for a vacancy at another company within the same group, it cannot forward the candidate's application documents to the other company within the group without the candidate's consent.

Employers must protect the personal data of job applicants (see Switzerland: Employee rights > Hours of work). The employer must return to the candidate or destroy application documents submitted by a candidate who is unsuccessful or refuses a job offer. However, the employer may keep the documents on file with the express consent of the candidate. An unsuccessful candidate may request from the employer a written statement about the data processed in the course of the application procedure.

Job applicants are obliged to answer questions asked by the employer truthfully and completely. Information that is important for the employer to assess the candidate's suitability for the position must be provided by the candidate of his or her own volition. Such information relates, for example, to physical or psychological problems or an absence of the necessary training to do the job.

Job offers

When an employer offers a candidate a position, negotiations over the employment contract are deemed to commence. The beginning of such negotiations does not represent a contractual relationship. Nevertheless, certain obligations apply to the employer and the candidate during the negotiations. These include a duty to act in good faith, which means that the prospective parties to the employment contract may not behave dishonestly and must respect the interests of the other party.

Young people and children

The employment of children under the age of 15 is generally prohibited. However, there are two exceptions:

  • Children aged at least 13 can perform light work, such as holiday jobs or work-orientation placements. Whether or not work is "light" depends on factors such as the nature of the work and the working hours. During school terms, working time must not exceed three hours per day and nine hours per week. During school holidays, working time must not exceed eight hours per day (which must be worked in the period between 6am and 6pm) and 40 hours per week, and the child can work during only half of the holiday period. Work-orientation placements may last for no more than two weeks.
  • Children under the age of 15 may work in cultural, artistic, sporting and advertising activities. For children under the age of 13, working time in such activities must not exceed three hours per day and nine hours per week. For those aged 13 or 14, the working time limits are the same as for light work (see previous point). The employer must inform the cantonal administration at least 14 days in advance about paid employment in these activities, but unpaid work (for example in sports clubs or amateur theatres) need not be notified.

In all cases where children under the age of 15 are employed, performing the work must not adversely affect their health, safety or development, or prejudice their schooling.

Children and young people under the age of 18 may not perform work whose nature, or the circumstances in which it is performed, could harm their health, safety, training or personal development. Such dangerous work specifically includes, for example, work with hazardous chemicals or machinery. However, for those aged 16 and above, the public employment authorities may permit potentially dangerous work if necessary for their training.

Under-18s may not be employed to serve customers in bars, nightclubs and similar premises. Under-16s may not be employed to serve customers in hotels, restaurants or cafes (except as part of training) or in non-artistic work (such as selling tickets) in cinemas, circuses and similar businesses.

With regard to young people aged 15 to 17 who have completed their school education:

  • daily working time (including any periods of training) may not exceed nine hours, or that of adult workers in the same organisation, whichever is lower;
  • the maximum period of daily working time includes any overtime, but 15-year-olds must not work overtime;
  • daily working hours (including rest breaks - see Switzerland: Employee rights > Rest breaks and rest periods) must be completed within a period of 12 hours (for example, between 7am and 7pm);
  • they must not work after 8pm in the case of 15-year-olds, and after 10pm in the case of those aged 16 or 17; and
  • they must be granted a daily rest period of at least 12 hours.

Under-18s are generally prohibited from working at night or on Sundays. However, there are general exceptions for vocational trainees in certain sectors (baking, for example) and the public employment authorities can also authorise night or Sunday work in specific cases. Further, employees aged 16 or 17 can work up to 26 Sundays per year in businesses in tourist areas. When under-18s do work at night, statutory limits apply to the duration and frequency of such work.

Up until they reach the age of 20, employees have an enhanced minimum entitlement of five weeks' paid annual leave, rather than the usual four weeks (see Switzerland: Employee rights > Holiday and holiday pay).

Employers are under a general duty to have particular regard to the health of employees under the age of 18, to ensure that they are not overtaxed. They must take into account that under-18s are inexperienced and likely to be less productive than adults, and ensure that they are properly informed on health and safety matters.

Foreign nationals

Nationals of the other European Free Trade Association (EFTA) countries (Iceland, Liechtenstein and Norway), the 25 pre-2007 EU member states (including the UK) and, from 1 June 2016, nationals of Bulgaria and Romania, require a residence permit (which also serves as a work permit) to work in Switzerland for more than three months in a calendar year. They must, before starting work, register with the local authorities in Switzerland and apply for a residence permit. This requires a confirmation of employment from the employer or an employment contract. The type of residence permit depends on the length of the employment contract: a short-term "type L" permit is issued for fixed-term employment of less than one year, while a "type B" permit is issued for fixed-term employment of at least one year or open-ended employment.

EFTA nationals, nationals of the 25 pre-2007 states and, from 1 June 2016, nationals of Bulgaria and Romania, taking up employment in Switzerland for less than three months can use an online registration procedure, prior to starting work, instead of applying for a residence permit. Companies posting workers temporarily to Switzerland (see Switzerland: Employee rights > Hours of work) can also use this advance online registration procedure for up to 90 working days per company per year. Registration must take place at least eight days before the employee starts work in Switzerland. Online registration can be used only for the posting of the company's own employees and not for temporary workers hired from an agency. Companies can post employees who are non-EU/EFTA nationals to Switzerland using the registration procedure if the employees have held a valid EU/EFTA work permit for at least 12 months. In posting situations, no registration is required for work lasting no more than eight days per calendar year, except for construction, hospitality, cleaning and security services, and in the case of itinerant workers.

Although the registration procedure has been simplified for EFTA nationals, nationals of the 25 pre-2007 states, and from 1 June 2016, nationals of Bulgaria and Romania, the Swiss government has introduced the obligation for foreign employers posting their employees to Switzerland to disclose the salary of each employee (see Switzerland: Employee rights > Posted workers).

Restrictions apply with regard to non-EU/EFTA nationals. They require both a residence permit and a separate work permit. Their prospective employer must apply to the cantonal employment authorities for the work permit. There is a quota for such permits and their award depends on whether or not the job could be filled by someone already in the Swiss labour market, and whether or not the pay and conditions offered meet Swiss norms. In addition, permits are generally limited to managers, specialists and other highly qualified employees.

Foreign employees are subject to the same employment conditions and benefits as Swiss employees.

Upcoming changes: On 9 February 2014, Swiss citizens approved an initiative for Switzerland to control and restrict immigration using annual quantitative limits and quotas. This initiative is due to be implemented by February 2017, but the draft legislation to implement the initiative, providing for annual limits and quotas for all foreign nationals while giving Swiss residents priority for jobs, is politically controversial and requires amendments to the agreement on the free movement of persons between Switzerland and the EU that are unlikely to be agreed by the EU. The outcome of this process therefore remains uncertain.

Sources/references

Discrimination in recruitment and selection is governed by chapter I, title 10 of part 5 (the "Code of Obligations") of the Federal Act on the Amendment of the Swiss Civil Code of 30 March 1911, as amended, and the Federal Act on Gender Equality of 24 March 1995, as amended. The Swiss Civil Code of 10 December 1907, as amended, is relevant to some aspects of recruitment and selection. The collection and processing of data on job applicants is regulated by the Federal Act on Data Protection of 19 June 1992, as amended. The employment of young people is governed mainly by the Federal Labour Act of 13 March 1964, as amended, and Ordinance 1 on the Federal Labour Act of 20 May 2000, as amended. The employment of foreign nationals is regulated principally by the Federal Act on Foreigners of 16 December 2005, as amended, and the Ordinances of 22 May 2002 on free movement between Switzerland and the EU/EFTA and of 24 October 2007 on admission, stay and paid work, as amended.