Swiss labor law advice

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Hi everyone,

This is not exactly “FIRE” related in the narrow sense of the term, but since the question is financials/money related I thought it could still belong in this forum and help out others who may find themselves in a similar situation…

In short, I am sending out an SOS in case someone is either a Swiss labor law expert and/or has been in a similar situation already… Let me give you the context first: the company I work for is currently ongoing a very large restructuring (note: this is not CS/UBS related) and my role will be eliminated, which will make me eligible to the “social plan” and in particular the severance package (X months of salary per year of tenure). However, the company would in fact like to retain me and is currently offering me several different options/roles, which is making me hesitant because there could be other waves of restructuring in the coming year(s) and there are rumours that the severance conditions of the future waves could be a lot less favorable than the current social plan (I won’t go into details as to why as it could give hints as to what company I am talking about, but I believe these rumours are very well founded). My question is therefore the following: if I were to take another role with the company (and therefore sign a new contract), do you think that 1) it is realistic asking HR to include a clause in the contract roughly saying that “if I get terminated not for cause in the next N years, then the severance conditions would be at least equal to the conditions of the current social plan” and most importantly 2) would such a clause actually be enforceable per Swiss law (given Swiss labor law is very liberal / employer-friendly)?

Thanks a lot in advance for your feedback and expertise…

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Does your profile have a union? They have lawyers that should be knowledgable about this kind of thing and alternatives. If by wild guess it is IT, Syndicom could be a fitting union. Workers should get organized.

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+1 for union, that’s what they are used to deal with (and you can usually get some free consultation).

There’s a variety of unions which likely would fit any kind of political opinion :slight_smile: (e.g. for IT Syndicom or Angestellte Schweiz).

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Doesn’t need a lot of expertise to answer these tbh: 1) no and 2) yes.

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Thanks for the tip! I don’t believe finance/accounting professionals have a union (I stand corrected) but I just tried my luck with https://employees.ch/ (although I am not a member, so not sure whether they will answer me…).

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Also if you have employee representative might be worth contacting them. They’re the one who negotiate the social plan (and will negotiate future ones)

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Sounds like a legitimate request to me. That said, the manager who wants to keep you on may give you much more support than HR. And if such a condition is stipulated in your contract, why wouldn’t it be enforceable?

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Each severance package is worse than any previous severance package. That is just the natural consequence of a prolonged and deep restructuring where obviously the first wave didn’t cut it. And, your employer might eliminate a lot of positions once with a severance package, only to then slowly but continuously keep bleeding positions for years just below the threshold of triggering a new mandatory social plan. So yes, if you (expect to) get a good deal, make sure you actually get it.

Contractually, you can agree to almost any form of compensation (unless your Executive Board of a listed company), and that will be enforceable. Just make sure it doesn’t violate the few limitations of the law, e.g. by resulting in a wording that would illegally define different notice periods for you compared to your employer. Be especially careful to not accept a new probation period or too general of a job definition (worst case with one-sided adaptation of responsibilities), that they could use to easily terminate you for performance later on.

The way to play this is simple if you want the safety net of the severance package: Get fired first, then negotiate a new contract. If you (try to) get a new contract before they actually have fired you (not just announced), then there is no reason to treat you like a fired employee. Same reason a union (if any) likely won’t care too much about you since you apparently have (or expect) an offer to stay. They will have enough to do right now with those actually losing their jobs.

TL;DR: See @Slutmachine 's answer

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By principe, any clause of a contract is enforceable. It’s uncommon to set an “cause” to termine a contract in private Swiss labour law, because you normally can termine the labour contract without a particular cause unless if it’s an abusive one. On the other hand, that system is very common in public Swiss labour laws. If you want to have that kind of clause in the new contract, make sure to define what is the compensation if the contract is termined without a proper cause, for example X months of brutto salary or other compensation.
A other good possibility (because more common ) could be to negociate a long determined duration labour contract. For example for 3 years. You can’t be fire during the contract duration, so it offers good protection and that kind of labour contract is well known by the Prud’hommes Court.

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