Holidays – right or duty?

• Corporate, Company Law
• Employment Law
• Private Clients
• SME

According to the law, employees are entitled to at least 4 weeks of paid holidays per year of service. Employees under the age of 20 are even entitled to 5 weeks of paid holidays.

The following article shows to what extent employers can influence the timing and duration of holidays and which restrictions apply to the employer’s right of determination.

The determination of employees’ holiday entitlement occasionally leads to disagreements between employers and employees due to different interests. Employers are interested in granting employees holidays as flexibly as possible and according to the volume of work that arises, while employees want to plan their holidays as early as possible in advance to gain planning security or due to cost considerations (e.g. because of defined school holidays or because a longer trip of several weeks is planned).

The Swiss Code of Obligations stipulates that holidays must generally be granted during the relevant year of service and that at least 2 weeks of holiday must be taken consecutively. Furthermore, the law provides that employers determine the timing of the holidays taking into account the wishes of the employees to the extent these are compatible with the interests of the business. The law recognises that conflicting interests exist but gives employers priority when it comes to the determination of holidays. The more important the company’s interests are, the more the interests of the employees must be pushed into the background. On the other hand, employers must approve the employees’ holiday requests, especially in the case of employees with children of school-age, if there are no overriding interests of the employer.

Company holidays

For company holidays that are unilaterally determined by the employer, an announcement period of at least 3 months has become established. Shorter periods or the short-term postponement of holidays by the employer can only be justified if there are demonstrably overriding operational requirements. A very short-term postponement of holidays by the employer that have already been planned or even a recall from holiday is subject to a very high hurdle, which can only be justified by an operational emergency. In such a case, employees have the right to catch up on vacation and employers are liable for the costs incurred by the employee due to the recall (e.g. early return journey, etc.).

Holiday bans vs. unauthorised use of vacation

The same principle of balancing interests also applies to so-called holiday bans by the employer. These are justified if the presence of employees is required during known peak times or if the presence of employees is required due to an extraordinary project (e.g. IT conversion and ensuring business continuity).

Here too, the duration and scope of the holiday ban should only be imposed for as long as and only on those employees who are urgently needed for a certain period and to the extent that operational reasons require it. A holiday ban may, for example, be deemed inadmissible before or after certain public holidays if the holiday ban is simply due to poor planning on the part of the employer. In such a case, employees should object to a holiday ban. Only after an objection and insistence on the part of the employer an unauthorised use of holiday might be justified. However, employees who take unauthorised holidays run the risk of being dismissed without notice if the employer has higher-ranking interests (e.g. operational emergency / unforeseeability) or if there is no objection raised by the employee. Taking unauthorised holidays can be grounds for a dismissal without notice.

Illness/accident during holidays

If an employee becomes ill during their holidays, they must report this to their employer within the same notification period. A short-term postponement of planned holidays by employees can be justified if the purpose of the holiday is no longer fulfilled due to illness or accident. However, the burden of proof for the inability to take holidays lies with the employee which must be proven by a corresponding medical certificate.

Working during holidays

Holidays are intended for recuperation. Accordingly, the law stipulates that holidays must be taken in kind and may not be compensated for in cash. Only in the case of irregular and short-term assignments or when the employment relationship is terminated holidays may be compensated for or paid out in cash under certain conditions. If an employee works for a third party during their holidays, they are in breach of their legal duty of loyalty and risk disciplinary actions under the labour law. On the other hand, the purpose of the holiday is to provide a period of rest and relaxation, and employers are only permitted to call employees to work during their holidays in the event of an operational emergency, otherwise the purpose of holidays is not fulfilled. In the context of today’s technical possibilities and the flexibility they bring along, it is not always easy for both sides to draw the line, but it is important to do so in view of the possible consequences.

Recommended actions

As part of mutual consideration and to enable both parties to plan better, we recommend the following:

1. Create an overview of planned holidays in the company at an early stage and coordinate holidays with each other as early as possible.
2. Ensure that there are stand-ins and communicate upcoming absences to suppliers and customers well in advance.
3. As an employer, communicate pro-actively your position that holidays are for recuperation and that a contact is only be made in exceptional cases.
4. Regulate by when holidays must be taken over the year of service or when outstanding holiday entitlements expire.
5. In the case of unilaterally imposed holidays, observe the advance notice period of three months.

We are happy to answer any further questions you may have.