News - Switzerland

Switzerland - March 2014

New proposals regarding whistleblowing

Employees who report irregularities at the workplace must first do so to their employer and wait for action to be taken before reporting outside the company.

Background

Employees reporting irregularities at the workplace (so called whistleblowers) are often exposed to the risk of dismissal. The Swiss Federal Council intends to introduce new procedures regarding the legitimate reporting of irregularities at the workplace to protect employees.

Legitimate report of irregularity at the workplace

The aim of the new regulation is to promote reporting inside the company: Thus, as a rule an employee reporting the irregularity may be protected provided that the irregularity is reported to the employer in the first instance. Informing the persons outside the company is seen as the last resort, which shall only be protected so long as certain requirements are met. This procedure aims to enable the employer himself to address the irregularities. If the employer does not deal with the situation within a maximum period of 60 days or does not inform the whistleblower about (i) the receipt of his report, (ii) the treatment of the issue and (iii) the results of the actions taken, the whistleblower may forward his report to the competent authority without violating his duty of loyalty towards the employer. Furthermore, reporting directly to the competent authority shall be allowed if it can be shown assumed that reporting to the employer would have had no effect or there was no reasonable prospect of achieving any result. However, whistleblowers will not be protected if they report irregularities directly to the public unless they have either first informed their employer or the relevant authority. Even if the employee does not regard the handling of the report by the authority as unsatisfactory, the employee still may not make his complaints public, unless the authority omits to inform the employee about the next steps to be taken.

Provided that whistleblowers follow the above mentioned procedure, they will not infringe their duty of loyalty vis-à-vis their employer.

Commentary

In case of irregularities at the workplace, whistleblowers are well advised to follow the above mentioned procedure regarding the reporting of irregularities so as not to infringe their duty of loyalty vis-à-vis their employer.

Resources

Swiss Federal Department of Justice and Police News Release (in German language):

For further information or to discuss any of the issues raised, please contact Stefanie Monge or Nadja Flühler on +41 44 220 12 12 at Poledna Boss Kurer AGwww.pbklaw.ch.

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