Telework/ home office after moving to Switzerland
The trend towards teleworking/home office is continuing. In our article, we examine the legal situation of this increasingly popular working model in Switzerland.
Not least because of the high wages and the low income tax, Switzerland is an attractive location for employees. At the same time, the Swiss economy needs skilled workers and the Covid 19 pandemic in particular has shown how acute the shortage of skilled workers is in certain sectors. If you are considering moving to Switzerland, find out more about telework/home office in the following article.
Rights and obligations in the case of telework/home office
principle
There is no legal entitlement to telework/home office. Also, an employer may not instruct his employees to work from home without reason and contrary to the agreement of a different place of work in the employment contract. If an employee wants to work permanently or regularly in the home office, this requires a corresponding contractual agreement with the employer.
Work tools and materials, remuneration and expenses
If, with the employer’s consent, an employee uses their own work equipment (e.g. laptop or mobile phone) or materials to work from home, they are entitled to reasonable remuneration for this, unless otherwise agreed or customary. In addition, the employee may be entitled to compensation if he uses a room in his private home or, for example, part of his living room for teleworking/home office. This only applies if there is no space available for the employee on the employer’s premises. In this case, the employer must also contribute to the costs for electricity or the Internet. Here, too, it is possible to agree on a daily, weekly or monthly expense allowance.
Prevention of work performance in the home office
If the employer allows his employees to work remotely or from home, he also bears the associated risks. This applies, for example, to disruptions such as a power failure or failure of the Internet connection, during which no work can be carried out from home. The prerequisite is that the employee is not responsible for the disruption himself. In these cases, too, he must return to the office if he is able to do so within a reasonable period of time.
Employee Liability
An employee can be held liable for the loss or intentional or negligent damage to work equipment and materials and for the loss or theft of internal data and documents. It is therefore advisable to have a clear agreement with the employer as to the consequences and action to be taken in the event of such loss or damage.
social security law
According to a principle of the Agreement on the Free Movement of Persons and the EFTA Agreement, a worker who carries out a “substantial part” of his/her employment – ie 25% or more – in the country of residence must also be insured there. In view of the changed working reality caused by the Covid-19 pandemic, the placement rules in the area of social insurance have been flexibly designed in accordance with the agreement on the free movement of persons and the EFTA agreement for telework/home office. Thus, an employee who is employed by a Swiss employer in the EU/EFTA area remains subject to Swiss social security law, even if he or she works a “substantial part” in the home office in the country of residence. Accordingly, the employee does not have to prove to foreign authorities with a secondment certificate (Form A1) that Swiss social security law applies to him.
This flexible application of the accommodation rules was extended on June 14, 2022 until December 31, 2022. A corresponding extension of this flexible application of the accommodation rules also takes place within the framework of the Agreement on the Free Movement of Persons and the EFTA Agreement and thus applies equally to Switzerland. Efforts are currently being made to make the accommodation rules under social security law more flexible as of January 1st, 2023, so that a certain proportion of telework/home office can be done in the country of residence without changing the responsibility under social security law.
place of jurisdiction
In labor disputes, the place of jurisdiction is the usual place of work. The predominant activity in the home office abroad can therefore result in the jurisdiction of a foreign court, which gives the employee the opportunity to sue his Swiss employer at his place of residence and work. Consequently, it cannot be ruled out that the foreign judge will apply his own labor law, insofar as it is more favorable for the employee, despite a conflicting choice of law clause. Especially in the countries bordering Switzerland, this means a much more employee-friendly labor law.
Permanent establishment risk for Swiss employers
Employees who work from home in their country of residence (and not in the employer’s country) for a long period of time may be able to set up a permanent establishment for the employer there. This can be the case, for example, if the employee performs management functions on behalf of the employer or is authorized to conclude contracts.
In order to avoid an additional tax burden and administrative expenses due to the founding of a business location through telework/home office, it is necessary for the employer to check and, if necessary, even restrict the activities of the employees concerned.