In practice, more and more working time models are being introduced that are no longer based on fixed and regular working hours, but allow for flexible distribution of working time. Despite the great relevance of part-time work, the employment contract provisions of the Swiss Code of Obligations (SCO) do not explicitly regulate part-time work. As a result, part-time employment relationships are basically subject to the same provisions as full-time employment relationships. However, because Articles 319 et seq. SCO are tailored to full-time employment relationships, certain difficulties may occasionally arise in their application to part-time relationships, which are described below.
Part-time or casual work?
Regular part-time work or actual part-time work exists if the employer and the employee have agreed, for example, on a scope of work of 50% of the full weekly working time or two days per week. Irregular or improper part-time work, on the other hand, is given if the work is performed at very irregular intervals and/or in differing time units, e.g. if an employee works 8 hours in a certain week, 12 hours in the following week and not at all in the following two weeks. However, in both cases this is a single, continuing employment relationship.
A distinction must be made between temporary or occasional work and this regular and irregular part-time work. This is not based on a continuing employment relationship in the same way as part-time work, but consists of a series of individual, self-contained employment relationships. Therefore, a new employment contract is agreed for each individual assignment, even if this contract can be concluded informally, as often happens in practice. However, the more regular these assignments become, the greater the risk that in a dispute the courts will no longer assume only casual work, but actual or improper part-time work. This leads to corresponding claims by the employee. If occasional assignments gradually develop into regular work (e.g. four assignments per month), the typical claims of the employee under employment law (protection against dismissal, holiday entitlement, continued payment of wages in the event of illness, etc.) also arise.
Of course, part-time employees are also entitled to real holidays. This entitlement is based on Art. 329a SCO. For employees over the age of 20, it amounts to at least four weeks per year, which corresponds to 20 days of holiday for full-time employees. For part-time employees, the number of holiday weeks is not reduced, but only the number of holiday days according to the degree of part-time work. An employee who works two days per week (40%) may also take four weeks of holiday. However, he has only taken eight days of holiday (4 weeks of 2 days each, during which he does not work), which means that his holiday entitlement is exhausted.
Holiday entitlement should not be confused with holiday pay. Sometimes, in hourly paid employment, employers do not pay the holiday pay when the employee is actually on holiday, but pay it continuously with the current wages (8.33% for four weeks’ holiday). This type of holiday pay does not, of course, lead to a settlement of the holiday entitlement of the part-time employee. The part-time employee is still entitled to four weeks’ holiday per year. Only the wage for the four weeks of holidays has already been (partially) reimbursed with the current wage payments. But beware: According to Federal Court case law, this type of holiday pay is only permissible if there is a very irregular part-time employment relationship. Moreover, it is required that the wage premium attributable to holidays be shown separately both in the employment contract and in each individual pay slip. A note “holiday pay included” is not sufficient. If these requirements are not met (e.g. if the employee is regularly employed on a part-time basis), the employer is threatened with double payment — even though he has already compensated the holiday pay with the current wage payments.
Time off and public holidays
Whether part-time employees are entitled to a paid public holiday is initially determined by the type of remuneration agreed upon. Employees on a monthly salary are entitled to paid public holidays if the holiday falls on a day that is part of the employee’s contractual working hours. For example, if an employee always works on Monday, he or she is entitled to a work-free and paid Whit Monday, but not to a work-free and paid Good Friday. In the case of changing work schedules, on the other hand, an obligation to pay wages in proportion to the degree of employment should be assumed. The legal situation is different for hourly-paid employees. They are not entitled to compensation for public holidays. Such a claim would only exist if a corresponding contractual arrangement was made, which in practice — arguably with a view to equal treatment with employees on a monthly salary — occurs relatively often.
The question also arises as to whether a part-time employee is entitled to short-term leave of absence to attend to a personal matter within the meaning of Art. 329 para. 3 SCO (e.g. a doctor’s appointment). The answer to this question depends on whether it is reasonable for the employee to do so during the time off from work, which is likely to be the case as a rule.
According to Art. 321c SCO, a part-time employee is also obliged to work overtime if he is able to do so and it can be reasonably expected of him in good faith. Overtime exists when extra work is performed beyond the contractually agreed working hours or beyond the normal working hours of the company. Thus, an employee who is employed on a part-time basis of 10 hours per week, but works 14 hours per week, works four hours of overtime. If these overtime hours are not compensated by time off and nothing to the contrary is agreed in writing or stipulated in the standard or collective agreement, these overtime hours must be paid with a premium of 25% (Art. 321c para. 3 SCO).
Continued payment of wages
If the employment relationship has lasted more than three months or has been entered into for more than three months, the part-time employee who is prevented from working for personal reasons through no fault of his own (e.g. illness) is entitled to limited continued payment of wages (Art. 324a para. 1 SCO), regardless of whether he is employed on an hourly or monthly basis. If no daily sickness benefits insurance has been taken out, the duration of the continued payment of wages is determined according to the applicable Zurich, Bern or Basel scale. According to the Zurich scale, the continued payment of wages is 3 weeks in the first year of service, 8 weeks in the second year of service, and so on. In the case of part-time work with fluctuating income, which is very common, the question also arises as to which wage is to be used as the basis for calculating the continued payment of wages. The average wage earned during a certain period of time before the occurrence of the event (reference period) is to be taken into account. This reference period is more meaningful and, in view of possible seasonal or other fluctuations, also more appropriate if it is measured as generously as possible (e.g. the average wage of the last twelve months).
Multiple job holding
Multiple employment relationships with different employers are generally permissible, provided there is no violation of Art. 321a para. 3 SCO. According to this provision, the employee may not perform work for a third party in return for remuneration for the duration of the employment relationship if in doing so he violates the duty of loyalty, in particular if the employee competes with the employer. In my opinion, there are no reasons here to deviate from this regulation on the prohibition of competition during the employment relationship, which also applies to full-time employees. However, there are also authors who take a different view: Thus, a tacit waiver of the non-competition clause can generally be presumed if under the circumstances the employer cannot assume that the part-time employee will only work for him.
If the part-time employee performs various activities, it must be ensured that the accumulated working time does not exceed the maximum working time prescribed by the Employment Act. This is 45 or 50 hours per week, depending on the type of work. A violation of the maximum working time occurs, for example, if the employee works for two companies for 26 hours per week each. The regulations on breaks (Art. 15 ArG) and daily rest (Art. 15a ArG) must also be observed if the employee works for several employers on the same day. Since the employer is responsible for compliance with the provisions on working hours and rest periods under employment law, he must therefore ensure that he is informed of any multiple employment of the employee. However, the employee has a corresponding duty of disclosure.