What are the employer’s obligations to inform?
What are the employer’s main information obligations during the course of the employment relationship? Insurance, labor law, and other obligations: everything is listed in this article written by our partner CJE, Avocats, Conseillers d’entreprises. A second part, to be published next month, will focus on the communication obligations of employees, as the information relationship is a two-way street.
Before listing specific obligations, it should be noted that Swiss labor law distinguishes between three levels of intensity: information, consultation, and consent. This article focuses primarily on the first level, information, but indicates where the law also requires consultation or consent.
The three levels of information
The employer brings an element to the attention of the workers. They are not required to seek their opinion before acting.
For example: posting schedules, providing the annual LPP/BVG certificate, information on job-related risks.
The employer must hear the workers and take their views into consideration before making a decision. They must justify their decision if the workers’ proposals are not accepted.
For example: introduction of night work, changes to schedules, restructuring affecting staff numbers.
The employer cannot act without the express agreement of the worker or the majority of the persons concerned. Without this agreement, the measure is null and void.
For example: individual night work, modification of on-call duty (workers with family responsibilities).
It is essential to understand that information provided when the required level was consultation or consent can render the employer’s decision null or abusive.
What are the obligations regarding insurance?
It is undoubtedly in the field of insurance that the employer’s information obligations are the least known and have the most serious consequences in the event of a breach. Four regimes must be distinguished.
An employer who has taken out collective daily sickness benefit insurance to replace their legal obligation to continue salary payments must inform their employees. This information covers:
- Coverage conditions: insured benefits, reimbursement rate, waiting period, duration of benefits, possible exclusions
- Any change of insurer or conditions: sufficient prior information must be given. Any reduction in benefits compared to the previous scheme is likely to constitute a modification of the employment contract requiring the employee’s agreement.
- The right to transfer to individual insurance (portability) at the end of collective coverage: the employee must be informed in good time to exercise this right within the period set by the insurer.
Any change of insurer or conditions (increase in the waiting period, reduction in the coverage rate) reducing benefits below the legal obligation of Art. 324a CO constitutes a unilateral modification of the contract. Formal written information is then essential and the employee’s agreement must be obtained.
While the obligation to provide information formally rests with the pension institution (Art. 86b LPP/BVG), the employer is in practice the indispensable link. In particular, they must:
• Ensure that each employee receives and understands their annual pension certificate: retirement capital, insured benefits in the event of death or disability.
• In the event of a change of pension institution: inform workers of the new conditions, provide the regulations and, where applicable, submit the decision to the workers’ representation. Their agreement is required (Art. 11 para. 3bis LPP/BVG).
• Inform about the possibilities of buying back contribution gaps and their tax advantages.
• In the event of a modification to the pension plan affecting benefits, communicate the changes in writing with reasonable notice.
• Information on non-professional accident (NPA) coverage and its financing (premium paid by the worker) from the start of employment.
• In the event of suspension of NPA coverage (reduction of working hours to less than 8 hours per week, end of contract): the employer must inform the worker, before the end of coverage, of their right to take out insurance by agreement with the accident insurer. UVG/LAA coverage ceases on the 31st day following the end of the right to half-salary; insurance by agreement allows NPA coverage to be extended by a maximum of 6 months. The information obligation is based on Art. 72 para. 2 UVV/OLAA and Art. 331 para. 4 CO.
• In the event of a change of UVG/LAA insurer: information on the new coverage conditions.
The employer is required to communicate to their workers any change in cantonal regulations affecting the amounts or conditions for granting family allowances, as well as the existence of any right to vocational training allowances.
What are the obligations regarding the Labor Act and participation?
- The employer has a duty to provide instruction on job-related risks upon entry into service, to be repeated during any modification, during working hours and at no cost to the employee.
- Before any introduction of a monitoring system: the employer is required to inform and consult the employee. Otherwise, the evidence collected may be inadmissible.
- In the event of a change in schedules: a general notice period of two weeks is required.
- When introducing night work, the employer is required to implement a full participation procedure.
- Annual information on the progress of the business is mandatory.
- Before restructuring or collective redundancies, prior information and consultation are mandatory, otherwise dismissals may be deemed abusive.
What are the other obligations?
- Contract modification: prior information and employee agreement required for any substantial modification.
- Annual salary certificate: mandatory delivery. It is a matter of keeping proof.
- Interim work certificate: provided upon request by the employee during the contract.
- New processing of sensitive data: mandatory prior individual information.
- Data breach: information without delay to the employees concerned if the risk is high.
Four concrete recommendations
- Create an annual calendar to plan mandatory communications: LPP/BVG certificate, annual LP information, reminder of daily sickness benefit insurance conditions.
- Formalize all important information, even if the law does not formally require it.
- Choose the appropriate level of intensity by identifying the obligation to inform, consult, or obtain consent before acting.
- Document: date, list recipients, and archive each communication: this is the best protection in the event of a dispute.
This article was written by our partner CJE, Avocats, Conseillers d’Entreprises.