1. Holiday entitlement
According to the Swiss Code of Obligations, every employee is entitled to a minimum of 4 weeks’ holiday (5 weeks if the employee is under 20 years old). Any provision stipulating a shorter period is deemed null and void, but the employer can grant more holidays in the employment contract or the collective bargaining agreement according to criteria such as seniority, age or position. Of the 4 or 5 weeks, at least 2 must be granted consecutively.
The law provides for the year of service as the basis for calculating holiday entitlement. In practice, many companies adopt the calendar year uniformly for all their employees. Regardless of the basis chosen, an employee who joins the company during the course of the year will have holiday entitlement calculated in proportion to his or her period of employment. The same principle applies in case of a change of status during the period.
2. Determining the date of holiday
According to the Code of Obligations, the employer sets the date of the holiday taking into account the employee’s wishes as much as possible. The date must be set early enough (3 months) for the employee to make arrangements.
The employer is therefore prohibited from imposing holidays on all or some of the employees, except in the event of extraordinary and unforeseeable situations that place the company in serious difficulty.
Holidays linked to the annual closure of the company (e.g. Christmas) may be taken if they are foreseeable, planned and meet a need of the company.
Unilateral taking of holidays by the employee is a just cause for dismissal unless the employer abuses his right of decision and refuses the holidays without just cause.
3. 3. Illness of the employee during the holiday
The purpose of holidays is to allow the employee to rest. In this case, days of illness occurring during holidays may not be deducted from holidays if the employee is ill for more than 2 consecutive days. The decision is made on a case-by-case basis and depends on the duration and reason for the incapacity.
The employee must in any case produce a medical certificate and inform the employer as soon as possible.
If an employee on sick leave asks to take a holiday (because he has exhausted his entitlement to salary in the event of incapacity to work or in the event of partial incapacity), the employer should grant his request. Indeed, the case law considers that if the employee asks to take a holiday, it is because he is able to take advantage of it. This holiday will therefore be deducted from the balance to be taken – regardless of the degree of indisposition.
4. 4. Limitation of holiday entitlement
The employer must ensure that the employee is able to take his/her holiday. The balance remaining at the end of the reference period must be added to the balance for the following year. It should be noted that it is not possible to compensate for not taking a holiday with a cash payment.
Finally, holiday entitlement is time-barred after 5 years, and any provision to the contrary – for example, the loss of unused holiday – is deemed void.
