Hiring: What can employers ask for?
The recruitment phase is a delicate time: the employer needs information to make an informed decision, but the candidate is entitled to protection of his or her private sphere. The reality on the ground is more nuanced than a simple list of permitted and prohibited questions. Some seemingly sensitive information becomes indispensable, depending on the nature of the position. It is this dual register of general rules and justified exceptions that this article sets out to examine.
This contribution is the first in a series devoted to the legal aspects of the employment relationship, from hiring to termination. We will follow the natural chronology of the Contrat, successively addressing the employer’s rights and obligations at each key stage: conclusion, performance, modification and termination. Each contribution will be self-contained and directly usable by HR managers and SME executives.
This article, written by our partner CJE, Avocats, Conseillers d’Entreprises, gives an overview of what can be asked during an interview, the limits to be respected and the exceptions allowed in certain situations.
Art. 328b of the Swiss Code of Obligations (CO) lays down the basic rule: the employer may only process data insofar as they relate to the employee’s suitability for the job or are necessary for the performance of the contract. This is not an absolute prohibition, but a requirement of justification: the same question may be lawful for one job and unlawful for another.
- Skills, diplomas, previous experience, work certificates and references (with consent).
- Extract from criminal record, for positions involving access to funds, vulnerable customers or security clearance.
- Residence and work permits for foreign nationals: verification not only legitimate, but mandatory.
Several categories of information deemed protected may legitimately be requested when objectively justified by the nature of the position. The employer must be able to demonstrate this justification.
Physical fitness
Generally prohibited, medical certificates of fitness are legal and often legally required (OLT 1 and 2) for jobs involving significant physical constraints (night work, carrying loads, hazardous substances). The doctor only provides the employer with a conclusion of fitness or unfitness, without any detailed medical data. In principle, pregnancy cannot be invoked (ATF 132 III 257), except in the case of exposure to incompatible agents within the meaning of the OProMa.
Financial situation and debt collection
A statement from the debt collection office is not permitted as a matter of principle. It is, however, justified for positions involving fund management, collective signature or extensive financial responsibility, in order to assess the risk of breach of trust.
Religious convictions
Belonging to the private sphere, they can be evoked in two situations: denominational institutions (for positions with educational or pastoral responsibilities) or positions involving schedule constraints linked to denominational days off, provided that the answer does not serve as a discriminatory pretext.
Union membership
Protected by art. 28 of the Constitution, union membership can never be used as a basis for hiring or refusal to hire. One exception: e.g. positions as union delegates or representatives on joint committees, where membership is an integral part of the job.
Tests and assessments
Psychological, handwriting or personality tests: permitted with the written consent of the candidate and in proportion to the requirements of the position. Results may not be passed on to third parties without express consent.
Cross-border commuters (G permit)
Check on recruitment that the employee lives in a border area and has a G permit before starting work. For cross-border teleworking, the 40% threshold from France must be documented in the contract. Tax implications (withholding tax or ordinary tax) vary according to canton and Franco-Swiss agreement.
Seconded workers (LDét)
Notification to the cantonal authority at least 8 days before the start of the assignment, appointment of a representative in Switzerland, compliance with Swiss minimum standards (industry wages, working hours, health protection). For both categories: check Swiss social insurance coverage (AVS, LAA, LPP) before starting work.
- Current pregnancy or family plans Expected children Marital status
- Sexual orientation
- General state of health, chronic illnesses, treatments, psychiatric history
- Previous sick leave and reasons
- Religious convictions (excluding justified denominational institutions)
- Union membership (excluding joint representative positions)
- Political views
- Lawsuits or debts (excluding positions with justified financial responsibility)
- Criminal record (except for objectively justified positions)
- Sickness fund of affiliation weight nationality of origin (excluding right to work)
The employer must inform applicants of the processing of their data:
- how their data will be processed
- shelf life
- the existence of any automated decisions.
Sensitive data (health, trade unions, biometrics) require additional conditions of lawfulness. The files of unsuccessful candidates must be destroyed or returned within a reasonable period of time.
Particularly when an unsuccessful candidate suggests that he/she may challenge the refusal in court (notably on the basis of the Equality Act (LEg) or for infringement of personality (art. 28 CC)), it is in the employer’s interest to retain the entire application file, interview grids and all correspondence. These documents constitute the employer’s main line of defense. The limitation period for claims based on the LEg is five years. The employer should therefore take care not to destroy the file prematurely when a dispute seems possible, and to document the selection criteria from the outset: this is the best protection against any allegation of discrimination.
Recruiting legally protects the company
The rule is not absolute prohibition, but proportionate justification. A well-advised employer will audit his interview forms and grids to distinguish between what is always lawful, or only lawful for certain positions, and what is never. It will train its HR managers, as it may be held liable for the actions of its employees, and document the basis on which candidate data is processed.
In a context where the requirements of the LPD have become more stringent, where forms of employment are diversifying – cross-border commuters, seconded workers, cross-border teleworking – and where candidates are increasingly aware of their rights, investing in a legally sound recruitment process is a necessity for any SME wishing to develop serenely.
This article was written by our partner CJE, Avocats, Conseillers d’Entreprises.