In the context of employment relations, employers have a duty to protect and respect the personality of their employees, a duty whose contours are defined in art. 328 of the Swiss Code of Obligations (CO). Personality covers all the essential physical, emotional and social values associated with the human person, including physical and psychological integrity, dignity, respect for private and family life, and personal and professional honor (CR CO – LEMPEN, art. 328, N1). In this context, the protection of personality is thus raised to the level of a contractual obligation, which imposes on the employer not only a duty of abstention, following the example of art. 28 CC, but also a duty of protection against attacks that may emanate from other members of staff or third parties. In particular, the employer is obliged to prevent accidents, avoid overwork, deal with situations of conflict or harassment, and show special consideration for certain categories of staff (CR CO – LEMPEN, art. 328, N3).
Thus, in the event of an attack on an employee’s personality, the employer is likely to incur contractual liability if he fails to take the necessary measures to protect his staff from attacks such as those described above (CR CO – LEMPEN, art. 328 N 7). It should be noted, however, that even if the employer has exercised due diligence in this respect, he will still be liable for any infringements of personality committed by his auxiliaries (art. 101 CO).
It is therefore essential for the employer to take the necessary measures (art. 328 para. 2 CO) to effectively protect the employee’s life, health and personal integrity.
a) Health protection measures
With regard to the health protection measures to be taken by employers, the Swiss Federal Supreme Court has recognized the existence of a uniform duty of protection in both private and public law (ATF 132 III 257, recitals 5.4, 5.4.5; CR CO – LEMPEN, art. 328 N 4). Consequently, employers are well advised to follow the recommendations based on occupational medicine and science, as well as art. 6 of the Labour Law (LTr) and its implementing regulations, in particular Ordinance 3 on health protection (OLT 3), as well as the Accident Insurance Act (LAA), which form the basis of health protection in the workplace, to identify the measures required according to the damage to be avoided (CR CO – LEMPEN, art. 328 N 5).
Thus, art. 6 LTr stipulates that, in order to protect workers’ health, the employer is required to take all measures that experience has shown to be necessary, that the state of the art allows to be applied, and that are suited to the company’s operating conditions. He must also take all necessary measures to protect the personal integrity of workers. In addition, both the physical and mental health of employees must be protected, so that the employer must, in particular, set up his facilities and regulate the work flow in such a way as to protect workers as far as possible from health hazards and overwork.
In this respect, the Swiss Federal Supreme Court has ruled that employers must make their employees aware of “all the risks inherent in the workplace” and instruct them on how to prevent them (Federal Supreme Court ruling 4A_21/2016, recital 3.2).
In addition to the accidents that can occur in the workplace, and which constitute obvious risks to the personality and health of workers, occupational health protection also encompasses other risks, which relate to various fields, including (CFST directive 6508, MSST directive):
- Ergonomics: office workstations in particular require long hours of sitting, which means that suitable workstations, desks and chairs must be provided.
- Noise: disruptive noise and environmental distraction must be reduced as far as possible through appropriate organizational measures, since they can be a source of stress and distraction.
- Psychosocial risks such as stress, burn-out, mobbing and sexual harassment can seriously damage employees’ physical and mental health, and can be caused by a poor working atmosphere, inadequate work organization, poorly designed workstations, overwork or pressure.
Faced with such risks, employers are obliged to implement organizational measures. These measures are largely defined in more concrete terms in LTO 3 and LTO 4, as well as in the comments of the State Secretariat for Economic Affairs (SECO), which have the status of directives according to the Federal Court (Federal Court ruling, 2C_462/2011 of May 9, 2012, recital 4.2). If the employer complies with the health protection directives, he is presumed to have met his obligations in this area. As the nature of these measures varies according to the size of the company and the nature of its activities, it is not possible to draw up a general list of the steps required to protect workers’ personalities.
That said, the directive relating to the calling in of occupational physicians and other occupational safety specialists (CFST directive 6508, MSST directive) drawn up by the Federal Commission for the Coordination of Occupational Safety (CFST), sets out the employer’s obligations in terms of occupational safety and health protection, and provides a number of useful guidelines for setting up a safety system tailored to the needs of each company. In essence, the CFST identifies the following elements as essential to guaranteeing safe jobs and thus effectively protecting employees’ personalities:
- A clear commitment on the part of the company’s management to occupational safety and health protection, and a statement of principle to the effect that the company will not tolerate attacks on personal integrity (sexual harassment, mobbing, discrimination, etc.). In this respect, the employer is required to formulate mandatory occupational health and safety objectives in safety guidelines, which can be formalized in internal company regulations, for example.
- The formal designation of a person in charge of safety for the company, possibly for each of its sites. This person will be primarily responsible for internal coordination, ensuring compliance with the measures developed, and training employees in this area. More specifically, the designated person will be responsible for assessing the risks inherent in the company’s activities. To this end, he or she may call on the services of a specialist in workplace safety, such as an occupational physician or safety engineer. It will then draw up an observation report outlining the risks identified and the prevention and safety measures proposed.
- Drawing up and adopting clear and concise occupational health and safety guidelines, based on the risks identified by the designated person.
- Planning and implementation of measures based on identified risks.
- Drawing up an emergency plan, including important numbers and contact details for emergency services and doctors, and first-aid supplies (first-aid kit). In addition, a sufficient number of people must have received first-aid training, and their knowledge must be kept up to date.
- Staff training, instruction and information. First and foremost, the employer must ensure that employees have been properly made aware of the risks identified, and that they have been provided with a clear definition of the relevant concepts, such as sexual or moral harassment, also known as mobbing. Employees should also be informed of the procedure to follow in the event of one of these risks occurring, as well as the penalties incurred, and trained in relation to the health and safety at work guidelines adopted and the plan drawn up in the event of an emergency.
It is recommended that workplace safety training be organized at least once a year. To this end, employers can turn to various professional associations or private providers in the field of occupational safety and health protection, who offer training courses aimed not only at employers, but also at workers.
Such training can be formalized by the signing of a document, by both employer and employee, attesting to the fact that the training has been dispensed with, or that the employee has taken part in it.
– Employee participation in risk and stress analysis. Since the law requires employers to inform and consult workers on health protection issues (Art. 48 al. 1 let. a LTr), it is necessary to include them in the drafting of internal health protection directives or regulations. This generally facilitates acceptance and compliance with the rules adopted.
– Control and audit of the occupational health and safety system. The process described above should be repeated at regular intervals – at least once a year – to check that the directives and technical and organizational measures put in place are still relevant and effective, and that they still meet the company’s needs.
b) Person of trust and internal conflict management
In accordance with art. 328 of the Swiss Code of Obligations and art. 6 of the Labour Code, the employer is obliged to ensure that the working atmosphere is free from violence and harassment, and to prevent conflicts and psychological or sexual harassment. In addition to the measures mentioned in the previous chapter, the employer should designate a trusted person outside the hierarchy, to whom staff members can confide in complete confidentiality. The Federal Court agrees with SECO (commentary on art. 2 of the OLT 3) and other legal experts, who advocate this measure, and considers that it is not disproportionate to require a company employing fewer than ten people to designate such a person, either inside or outside the company, and to inform its staff accordingly. The employer may, however, choose not to comply with this standard, but will have to demonstrate the implementation of an “equivalent conflict management system that ensures the same level of protection” (Federal Court ruling 2C_462/2011 of May 9, 2012, recital 5.3). In this respect, it would be conceivable to turn to a professional association to set up a common system, such as a Group of Trust, for an entire sector of activity, unless employees already have the option of appealing to an existing structure (CR CO – LEMPEN, art. 328 N 36).
Furthermore, in the event of conflict, and in particular when an employee’s personality is affected, the employer must act without delay to remedy the situation (ATF 127 III 351, consid. 4b/dd). Depending on the circumstances, the employer has various options open to him, such as separating the persons involved or setting up a mediation procedure to try to settle the dispute (CR CO – LEMPEN, art. 328 N 38).
The employer must take care not to take any measures likely to disadvantage an employee whose personality has been affected, or to worsen his or her working conditions. On several occasions, the Swiss Federal Court has ruled that the dismissal of an employee who has been the victim of harassment, after the employer had tolerated this situation for a long time in breach of his duty to protect, on the grounds that the employee was no longer performing well enough or had become aggressive, constituted unfair dismissal (CR CO – LEMPEN, art. 328 N 39; ATF 125 III 70, consid. 2a; Federal Court ruling 4A_166/2018, consid. 3.2). Similarly, the Civil Court of Appeal of the Vaud Cantonal Court recently ruled that an employer who had breached his obligation to protect under art. 328 CO could not rely on the consequences of this breach (in this case, the fact that the employee in question had insulted the employer with the knowledge of her colleagues) to justify the immediate termination of the employment contract of the employee concerned (Ruling of the Civil Court of Appeal of the Vaud Cantonal Court HC/2023/45 of February 16, 2023, consid. 3.2.2; for a detailed commentary on this ruling, see EHRENSTRÖM, “Injurer l’employeur sur WhatsApp : licenciement immédiat?” available at https://droitdutravailensuisse.com/2023/03/19/injurier-lemployeur-sur-whatsapp-licenciement-immediat/).
In any event, in the event of suspicions or accusations of harassment, it is imperative that the employer clarify the facts and hear the harassed person and the accused separately. Depending on the circumstances, it may even be necessary to open an internal investigation, possibly involving third parties (CR CO – LEMPEN, art. 328 N 40).
The above recommendations must of course be adapted not only to the size of the company in question, but also to its sector of activity and resources. However, this does not absolve any employer from his or her duty to protect the privacy of his or her employees, which must be central to the company’s internal organization.
Kevin Guillet and Eugenia Marchetti