Form Requirements in Employment Law – Risks and Practical Solutions
While Swiss employment law is generally governed by the principle of freedom of form, the law prescribes mandatory written form requirements for numerous practically relevant situations. Non-compliance with these form requirements can have far-reaching consequences – in particular the invalidity of individual contractual clauses, often to the detriment of the employer. At the same time, questions increasingly arise in practice in connection with the use of electronic signatures and alternative means of transmission.
The following article provides an overview of the most important form requirements in the individual employment contract, examines the requirements for the qualified electronic signature and presents practice-oriented solutions.
Principle of Freedom of Form and Statutory Exceptions
As already mentioned, Swiss employment law is generally governed by the principle of freedom of form: an individual employment contract may be concluded orally, by implied conduct or in writing.
Form requirements have a warning and protective function, a clarification function and an evidentiary function. Non-compliance with form requirements regularly leads to the invalidity of the clause in question – in practice, often to the detriment of the employer.
However, the law provides for numerous exceptions where written form is prescribed as a validity requirement. In particular, the apprenticeship contract (Art. 344a CO) and the maritime employment contract (Art. 69 SSG) require written form. Furthermore, the commercial traveler contract (Art. 347a CO) and the temporary employment contract (Art. 19 AVG) must generally be concluded in writing if the parties wish to deviate from the statutory default provisions.
The law prescribes written form for numerous clauses of the individual employment contract that are frequently agreed in practice, as well as for certain statements and declarations by a party in particular:
| Provision (non-exhaustive) | Legal ground |
|---|---|
| Amendment / waiver of overtime compensation | Art. 321c para 1 CO |
| Deferral of the commission due date | Art. 323 para 2 CO |
| Equivalent provision for continued salary payment in case the employee is unable to work | Art. 324 para 4 CO |
| Lumpsum ompensation for expenses | Art. 327a para 2 CO |
| Deferral of the return of a deposit to the employee | Art. 330 para 2 CO |
| Acquisition by the employer of employee inventions and/or designs produced in the course of the work but not in performance of contractual obligations | Art. 332 para 2 CO |
| Waiver or amendment of the probation period | Art. 335b para 2 CO |
| Amendment of statutory notice periods | Art. 335c para 2 CO |
| Amount and payability of a severance payment | Art. 339c CO |
| Establishment of a non-compete clause and agreement on specific performance | Art. 340 CO |
| Furthermore: Assignment and staff leasing agreement in the context of staff leasing | Art. 19, 22 AVG |
| Information obligation of the employer regarding the terms of the contract | Art. 330b CO |
| Justification for termination (ordinary or summary) | Art. 335 Abs. 2, 337 Abs. 1 CO |
| Notification by the employer in the event of collective redundancies | Art. 335f Abs. 3 und 4 CO |
| Notification of collective redundancies to the cantonal employment office | Art. 335g Abs. 1 und 2 CO |
| Objection to a termination | Art. 336b Abs. 1 CO |
Statutory Written Form and the Qualified Electronic Signature
Simple written form pursuant to Art. 13–15 CO requires two elements: a written declaration and the handwritten signature of the declaring party. Pursuant to Art. 14 para. 2bis CO, a qualified electronic signature (“QES”) combined with a qualified time stamp under the Federal Act on Electronic Signatures (ZertES) is deemed equivalent to a handwritten signature.
When using electronic signatures, the choice of service provider and product is decisive. Only a Swiss QES – issued by a recognized Swiss certification service such as Swisscom (Switzerland) Ltd, QuoVadis Trustlink Schweiz AG or SwissSign AG – meets the statutory requirements.
The EU QES is currently not recognized in Switzerland, which may pose an additional risk particularly in cross-border situations.
The validity of an electronic signature can be verified at www.validator.admin.ch by uploading the document containing the signature in question.
Alternative Means of Transmission
Significant legal uncertainties exist when declarations are transmitted by e-mail, scan, fax or WhatsApp. Where statutory written form requirements apply – for example, in the case of an objection to a dismissal (Art. 336b para. 1 CO) – case law likely only accepts transmission of the physical original or by means of a QES-signed document. Where written form requirements are contractually agreed, the parties may, however, expressly provide for deviations and explicitly permit the use of electronic forms of communication.
Practical Recommendations
Employment contracts containing clauses subject to form requirements should continue to be signed by both parties with handwritten signatures or, alternatively, by means of a QES. Clauses subject to form requirements should be included directly in the employment contract rather than in separate documents or annexes to it (e.g. employee handbook, etc.). If an electronic signature is used, only a Swiss QES should be utilized. Where written form is contractually agreed, a modification clause expressly permitting the use of electronic forms of communication is recommended.
In case of doubt, a handwritten signature with registered mail or personal delivery remains the safest approach to avoid formal defects.
For further information, please contact:
Sebastian Wyler, Senior Associate
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