News - Switzerland

Switzerland - April 2011

Is an employee's illness to be mentioned in an employer's reference?

A wide-reaching Federal Supreme Court decision has clarified the employer’s duty to mention an employee’s illnesses in references.

The case

The case involved a regional secretary of a trade union who had not been able to work for the last  year and a half until the termination of his employment  in January 2009.  He asked for a qualified or full reference according to art. 330 para.1 of the Swiss Code of Obligations (CO).  The trade union, as his employer, referred to his illness, which had caused a long absence, in this reference.   The employee argued before the court that his illness was not the reason for the termination of his employment, but that there was an alleged breach of the employer’s duty of good faith.  Since a reference needs to be drafted benevolently, it should not refer to his illness.

Federal Supreme Court’s decision

The Federal Supreme Court ruled that the illness brought into question his ability to continue working as regional secretary of the trade union and that it may be deemed under such circumstances to be a good reason to terminate the contract of employment. However, regardless of whether the illness constituted a good reason, the employer was not only entitled, but also obliged to mention the fact of the illness in the reference. Otherwise, a false impression might be given regarding his work experience as regional secretary of the trade union.
Nevertheless, the Federal Supreme Court held that past illnesses which do not affect a review of the employee should not be mentioned in references.

Resources

Decision of the Federal Supreme Court BGE 136 III 510 of September 6, 2010

For further information or to discuss any of the issues raised, please contact Walter H. Boss or Thomas G. Albert on +41 44 220 12 12