Switzerland: Digital Signatures are Increasingly Popular, but Might Trigger Far-reaching Legal Consequences if not Used in Compliance with Swiss Law
Concluding an employment contract under Swiss private law:
In principle, apart from apprentice agreements and employer record agreements, Swiss private law does not require any formal requirements for the valid conclusion of an employment contract (Art. 320 para. 1 CO). Therefore, verbal agreements, implied conduct, as well as any type of digital signatures (e.g., DocuSign or a scanned handwritten signature) are sufficient to conclude a binding employment contract. The employer’s only obligation is to define the contracting parties, date of entry, position of the employee, as well as his/her wage and weekly hours within a month after the first day of work in writing (Art. 330b CO).
Statutory Restrictions on Freedom of Form for Employment Contracts:
Notwithstanding the general rule that Swiss employment contracts can be concluded verbally or with any form of digital signature, the Swiss Code of Obligations (CO) requires certain employment contract provisions to be in writing. These are:
- Compensation for overtime (Art. 321c para. 3 CO)
- Pro rata entitlement to commission (Art. 322b para. 2 CO)
- Payment period of the commission (Art. 323 para. 2 CO)
- Wages in the event of being prevented from working through no fault of one’s own (Art. 324a para. 4 CO)
- Flat-rate expenses (Art. 327a para. 2 CO)
- Time of return of deposit (Art. 330 para. 2 CO)
- Inventor clause (Art. 332 para. 2 CO)
- Duration of the trial period (Art. 335b para. 2 CO)
- Period of notice (Art. 335c para. 2 CO)
- Maturity of commission claims (Art. 339 para. 2 CO)
- Amount and due date of severance payments (Art. 339c para. 1 and para. 4 CO)
- Agreement of a post-contractual non-competition clause (Art. 340 para. 1 CO)
- Real fulfilment of a non-competition clause (Art. 340 para. 3 CO)
If these clauses are not recorded in writing, they will be null and void and the provisions of the CO will apply only.
Furthermore, the parties themselves can also agree that certain rights must be exercised in writing. For example, many employment contracts stipulate that the termination notice must be given in writing.
What is the legal definition of in writing and what are the legal consequences if it is not met?
As soon as a document has to be legally or contractually signed in writing, the definition is based on Art. 13 and Art. 14 CO, which state that in writing means that the signature must be written by hand (also called “wet signature”).
Consequently, a document or clause lacking this required form is void. As a result, the employment contract remains valid to a certain degree, except for any provision that requires, by law, the form requirement in writing. Similarly, a termination letter, which must be in writing based on the contractual agreement is only valid if signed by hand or by which digital signature, officially recognized in Switzerland.
Which Digital Signature Solutions fulfil the legal formal requirement for signatures in writing?
According to Art. 14bis CO, the only digital signatures recognized by Swiss law are the so-called qualified electronic signatures (QES). Only providers of QES that meet the requirements of the Federal Electronic Signature Act of 18 March 2016 are therefore recognized as equally valid signatures as a handwritten signature. The complete list of providers recognized by the Swiss government can be found online via the following link:
In addition to the list of recognized providers, the government offers an online verification function that tells you whether the digital signature on the document is legally binding within the meaning of “in writing” under Swiss law. You can find the function at the following link:
Balancing Act: Deciding which digital signature can be used when
In summary, Swiss employment contracts can in principle be concluded verbally (or by implied conduct) signed by hand, as well as by using conventional digital signature providers, which are not recognized by the State. Attention must be paid to the right choice of digital signature once provisions are included in an employment contract, which, either by law or based on an agreement between the contractual parties, must be in writing. In such cases, only a recognized qualified electronic signature (QES) solution must be used, as otherwise the respective contractual clauses or legal acts are null and void.
