Gathering information at the start of a Contrat: legal foundations and best practices
After clarifying the limits of questions permitted during the job interview in our previous article, we turn our attention this time to what changes after hiring. The transition from candidate to employee considerably broadens the information that the employer is entitled to demand. Certain data previously forbidden becomes not only relevant, but in some cases essential, in order to comply with the legal obligations associated with the employment relationship. This article, written by our partner CJE, Avocats, Conseillers d’Entreprises, guides you through what employers can actually ask for once a contract has been signed, and why.
A field of questions that expands with commitment
During the application phase, the employer seeks to determine whether the candidate is suitable for the proposed activity. Questions are legitimate insofar as they serve this purpose. On the other hand, information unrelated to the job, such as general health, private life, religious convictions or family plans, remains off-limits.
Once the decision to hire has been taken, the situation changes. The Contrat creates a lasting legal bond. The employer must now meet specific legal obligations, such as social security declarations, salary payments, absence management and compliance with protection standards. These obligations justify the collection of information that could not have been required at the application stage.
The forward-looking employer will draw up an entry form that completes the application questionnaire by covering entirely new headings: AVS number, bank details, dependent children, health insurance, previous pension situation. These questions are legitimate after hiring, whereas they were not before.
Principles governing the right to ask questions
The employer’s right to request information, and the corresponding obligation to respond, are based on four categories, which must be examined in order.
This is the strongest category. When a law requires the employer to know information, the employee is obliged to communicate it without restriction. Refusal to do so constitutes a breach of contract.
Here are a few examples:
- the AVS number is required for declarations to compensation funds (art. 50c LAVS),
- information on dependent children is required for the payment of family allowances (art. 3 ff LAFam),
- the type of work and residence permit determines the legality of the employment (LEI) etc…
The legal basis applies after the contract has been signed, as reporting obligations only arise from the start of the contract.
Irrespective of any express legal provision, the employer may demand information without which the contract cannot be properly performed. This derives from the employee’s duty of loyalty (art. 321a CO) and the employer’s right of direction (art. 321d CO).
Here are a few examples:
- bank details for salary transfers,
- date of entry into service,
- the activity rate,
- absences already planned that will affect work organization.
Some of the elements identified at the bidding stage are reflected in the service entry form with a greater degree of precision, as the terms and conditions of the contract are now known.
In the absence of a legal basis, and even if the information is not strictly speaking indispensable, the employer may ask certain questions if he/she can justify a legitimate interest. This notion, anchored in art. 328b CO and taken up by art. 31 LPD, requires a proportionate balancing of the employer’s interest and the employee’s personal rights (art. 328 CO).
Here are a few examples:
- private vehicle comprehensive insurance for business trips,
- union membership when there is a CLA whose scope depends on membership,
- the existence of a current fixed-term contract with another employer.
Justification must be concrete and proportionate.
When the information does not fall into any of the above three categories, the employer may only collect it with the employee’s free, specific, informed and express consent (art. 6 LPD). This consent must be validly given: it cannot result from a simple signature at the bottom of an employment form. Refusal to respond cannot have any consequences for the employment relationship.
For example, union membership cannot be demanded when no CLA is involved. If the employer nevertheless requests it (e.g. to adapt internal communication), this must be based on explicit consent, with the express mention that refusal will not entail any sanction.
Warning: in a subordinate relationship, the free nature of consent is presumed to be problematic. The Federal Data Protection Commissioner (FDPIC) points out that the asymmetry of power between employer and employee makes it all the more necessary for any request based on consent to be transparent and genuinely voluntary.
The right not to answer and the right to lie
When a question is not legitimate, i.e. does not meet any of the conditions set out in categories A to D above, the candidate or employee is entitled to refuse to answer it, or even to give an inaccurate answer, without this constituting grounds for termination or a breach of the duty of loyalty. The case law of the Swiss Federal Supreme Court (ATF 130 III 699; ATF 113 II 232) recognizes this “right to lie defensively” in the face of illegitimate questions about health, pregnancy or religious convictions.
On the other hand, if the question is legitimate according to categories A to C above, a false answer may constitute fraud (art. 28 CO) justifying invalidation of the contract, or even immediate dismissal.
Concrete examples of broadening the scope of questions
Medical certificate restricting certain activities (including art. 62 al. 3 OLT 1 for pregnant/breastfeeding workers): necessary to adapt work organization and comply with health protection obligations.
Maternity leave (art. 329f CO); leave for the other parent (art. 329g CO); adoption leave (art. 329j CO); leave for a seriously ill child (art. 329i CO): approximate date and duration requested to enable activity planning and APG declarations.
Authorized teleworking and agreed maximum rate: specific mention of tax and social security rules for cross-border commuters (40% threshold provided for in the 2025 Franco-Swiss bilateral agreement, in force from 2026).
Conclusion
The distinction between an application questionnaire and an entry-to-service form is more than just a formality: it reflects a rigorous legal logic. Before hiring, the employer gathers what is necessary to make an informed decision. After hiring, he/she collects what is necessary to perform the Contrat and meet his/her legal obligations.
There are several advantages to using two separate documents, clearly dated and signed by both parties:
- demonstrates compliance with art. 328b of the Swiss Code of Obligations and the Data Protection Act (DPA),
- avoids collecting sensitive information before the need is established,
- provides the employer with a clear traceability of what has been collected, when and on what basis.
This article was written by our partner CJE, Avocats, Conseillers d’Entreprises.