Switzerland Update: Celebrate only on public holidays?

The Christian holidays of Ascension and Pentecost are approaching. Some of us are looking forward to the long weekends, which is the special treat of such public holidays.

Public holidays in Switzerland are predominantly based on Christian tradition. An interesting and practical question arises in this context – what about employees of other faiths who wish to celebrate religious festivals on non-statutory holidays? Can employees claim days off? And what does this mean for employers?

Beliefs and religious convictions, including the effective exercise of these in the form of so-called freedom of worship, are generally protected by the Federal Constitution (Art. 15 BV). This refers to freedom of faith and conscience, sometimes also called freedom of religion.

Swiss employment law itself provides in general terms in Art. 328 CO that employees have a right to expect employers to respect and protect their personality in the employment relationship. This protection of personality also includes beliefs and religious convictions.

Explicit holiday regulations are also contained in Swiss employment law. According to Art. 20a of the Swiss Labour Act, employees may attend religious celebrations. In principle, an employee is entitled to suspend work on religious holidays other than those statutorily recognized by the cantons. The employee must notify the employer of his/her intention to do so at least three days in advance. The employer, in turn, must give the employee the necessary time off, if possible, to attend religious celebrations or to perform religious rites at the employee’s request. Only in justified cases may an employer refuse such a request. If, on the other hand, religious celebrations can be attended during regular work breaks, the employer does not have to give the employee additional time off. 

If work is suspended for the celebration of religious holidays, the question of compensation arises. In this regard, the Swiss Labour Act refers to the general regulation on compensation for lost working time: The employer may order appropriate compensation within a reasonable period of time as a deviation from the maximum weekly working time. It follows that the time off granted for religious holidays must be unpaid or the working time compensated. The compensation for an individual employee, including overtime work, may not exceed two hours per day, except on non-working days or half-days. 

In practice, we recommend that employees who wish to practice religious celebrations outside the statutory public holidays notify their employer in good time. In our view, the legal deadline of three days in advance is extremely tight. This notice period is intended to allow the employer to plan accordingly and also takes into account the fact that in everyday working life statutory public holidays, including possible bridge days, are more likely to be anticipated in planning than non-statutory public holidays. With a somewhat more generous notice period, it can also be assumed that such a free day should then generally be possible from an organizational and operational perspective. Reliable planning and communication are ultimately in the interest of both sides. In this way, the legitimate needs of employees with regard to the practice of religious festivals and rites, which are protected fundamental rights and personal rights, can be taken into account just as much as the necessary and efficient organization of the working day. The law aims to achieve this balance. 

By Marc Ph. Prinz and Nicolai Bleskie, Vischer, Switzerland, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact switzerlandlabor@transatlanticlaw.com

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