On-Call Work in Switzerland: The Federal Supreme Court Confirms its Increasingly restrictive Case Law regarding On-Call Work

Currently, Switzerland has no specific legislation on on-call work. The legal doctrine offers some definitions on the institute of on-call work and the Swiss case law has developed certain rules regarding compensation for on-call work. An interesting statistical fact is that only 5.1 percent of employees in Switzerland were on-call workers in 2020.

On-call work is similar to part-time work, but lacks on a specific pre-agreement of the exact date and duration of the work assignment. A distinction is made between “atypical ” and the more usual “typcal” on-call work. The former is the case when the employee is not obliged to accept a work call by the employer, i.e. the call by the employer can only be qualified as an offer that needs to be accepted. In the case of typical on-call work, the employee is obliged to follow the employer’s call.

The basic problem of “typical” work on call arises from the employee’s duty of readiness and the employer’s freedom to call the employee to work or not. If the employee does not receive a work call, he won’t generate any income, although he still cannot dispose of his time in any other way.

Although the Federal Supreme Court considers on-call work to be permissible in principle, its increasingly restrictive case law considers more and more the interests of employees. According to recent case law, the employee may rely on a certain workload and can claim compensation in case she or he is not called to work on a very short-time notice. It follows from the provisions concerning the default of acceptance by the employer (article 324 para. 1 of the Swiss Code of Obligations [CO]) that it is not the employee but the employer who bears the operational risk. If the employer refuses to accept the work offered by the employee for economic reasons, he is in default of acceptance and remains obliged to pay the salary. Moreover, even during the notice period, the employee has a right to continue to be assigned the usual workload, as otherwise the protective purpose of the notice periods would be circumvented.

In its decision of 20 September 2022 (BGer 4A_89/2022), the Federal Supreme Court had to deal again with the problem of unequal power relations in on-call work situations. The decision was based on the following facts:

The employee was employed as a psychotherapist in the employer’s practice. The employment contract stipulated that the employee’s degree of employment was variable depending on the needs of the practice. The same regulation applied to the weekly working hours. In addition, wages were paid after the patients had settled their bills, with deductions made for billing costs and the balance split equally between the employer and the employee.

A dispute then arose between the employee and the employer regarding wage payments. The employee complained about irregularities in the remuneration.

The employer then stopped assigning new patients to the employee and some months later she was dismissed. The employee sued the employer for payment of lost wages and compensation for unfair dismissal. The claim was upheld by the lower courts. The employer finally appealed to the Federal Supreme Court, which largely confirmed the findings of the lower court.

According to the courts, the contract in question was an on-call contract that was designed solely in the interest of the employer. Such a system, in which the employer could unilaterally determine the employee’s working hours and remuneration according to its own needs, was not compatible with article 324 para. 1 CO and article 326 CO. The employer could not suddenly refuse the employee’s services and deprive her of any remuneration. He would remain liable for wages even if he no longer provided sufficient work for the employee who was willing to accept work. Accordingly, the employee could claim the difference to the salary she would have received if she had still been assigned patients to the extent that she had been before the disputes.