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WORKING IN SWITZERLAND

Privacy in Switzerland: Can my boss read my emails and check my phone?

Can your employer access your personal data, i.e. emails or look through your work phone? Renuka Cavadini of Geneva's Page & Partners breaks down your rights under Swiss employment law.

A group of people using their laptops and smartphones
What are your privacy rights in the workplace in Switzerland? Here's what you need to know. Photo by Marvin Meyer on Unsplash

It is end of the year and a time for family gatherings – but unfortunately also the time when many people may be on the verge of losing their jobs.

I’m not here to bring pessimism – just practicality on what to be careful of just in case you think something is not right at work.

For the most important parts related to what you need to prepare for – from the angle of getting fired, please read the following article.

Getting fired in Switzerland : The employment laws you need to know about

The following article will give you a gist of what is considered private or not according to Swiss law and what your employer can use as evidence against you.

Duties of the employer to protect the personality of the employee

Under Swiss law, the employer must protect the personality of employees. 

The “protection of the personality” of individuals under Swiss law covers all the essential values, physical, emotional and social that are linked to the person’s life including but not limited to physical and psychological integrity; physical and mental health; sexual freedom and respect for emotional life; honour, moral integrity and social consideration; individual freedom and privacy and the use of personal data.

From an employer perspective, this includes complying with the Swiss federal law on data protection.

This law provides that all treatment of personal data must respect the principle of proportionality, in other words your employer can only access your personal data if he/she proves that there were no other less intrusive means of getting the relevant information necessary to protect another prevailing public or private interest e.g. the protection of the workplace or the health of any other employee.

Can your employer read your personal emails and access your personal data saved on your office computer? 

In a recent judgement of August 25th, 2021, the Federal Court of Switzerland fined an employer for breaching the privacy of his employee.

The employee’s contract was terminated with the regular notice period because of a management deficiency. After a couple of days, the employee was asked to delete all private data from his professional mobile phone before returning it to his employer. 

The employer then heard that his employee had insulted colleagues and had inappropriate behaviour similar to sexual harassment in the workplace.

The employer therefore terminated the employee’s agreement with immediate effect during the notice period. The employer then began looking through the deleted personal data in the employer’s mobile phone to find evidence. 

The judges of the Federal Court did not specifically analyse the question of whether or not the deleted personal data was or not directly related to the execution of the employment agreement and therefore permitted.

However, they considered that since other means were available to the employer to obtain evidence against his employee, such as the hearing of former employees, the collection of the personal data was deemed disproportionate and therefore constituted an unlawful breach of the employee’s right to privacy.

The employer was condemned to pay damages of CHF5,000 – to his employee.

If the emails accessed by your employer are related to the conclusion and the execution of your employment agreement, the access to your personal emails by your employer may be legally admissible. It may also be the case if your employer is looking for proofs to bring to a trial linked to your employment. 

In another case, an employer was looking for evidence after firing an employee. One email produced in front of the Court was sent by the employee to his/her lawyer, although it was not identifiable, as such, at first sight.

The Federal Court considered the access to this specific email to be legally admissible, because the employer could not have known it was a personal email before opening and reading it. 

This decision has caused a lot of criticism from some legal authors since the concerned  should be covered by professional secrecy. However, other legal authors believe that if the employee wanted this email to be confidential, he should not have used his professional email to send it or at least saved it in a file named “Personal” or “Confidential”, which was not the case.

What is, or is not directly related to the execution of the employment agreement, depends on the appreciation of the judges examining the case.

Practical tips

  1. Be careful about what you write on emails and to whom in your workplace (or even on a public social media account) and remember any aggressive content may be used against you.
  2. It may be evident, but easy to forget when you’re stressed, don’t use your professional email address for correspondence with your lawyers.
  3. Anything personal (emails to friends, family, colleagues) which were accidentally received on the work email should be deleted and if absolutely necessary to save on the work email, they should be in a specific folder indicated as “Personal” or “Confidential”. The specific folder will anyway be accessible to your employer, whether or not he can use it against you will depend on the company policy, the content of the email etc.
  4. If the employer has a policy for no personal emails in the workplace, he / she may be able to access the “Personal” or “Confidential” folders because the court may consider that they should not have existed in the first place because of Company policy.
  5. Keep your professional and personal mobile phones separate to avoid personal information being accessible to your employer.

This article was prepared by Renuka Cavadini of Page & Partners.

Page & Partners provides an introductory call of 20 minutes in English. We look forward to being able to assist you.

Tél.+4122 839 81 50

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SWISS CITIZENSHIP

Third generation fast-track naturalisation in Switzerland: What you need to know

Many people in Switzerland are eligible for third generation fast-track naturalisation but are unaware. Here's what you need to know.

Third generation fast-track naturalisation in Switzerland: What you need to know

According to a report published by the Federal Commission of Migration on April 8th, one quarter of the Swiss resident population do not vote because they do not have the nationality.

Almost 350,000 people are foreigners born in Switzerland and approximately 35,000 belong to third generation families established in Switzerland.

Walter Leimgruber, President of the Federal Commission of Migration, hopes that many young people will take advantage of this transitional period.

He believes it would be a benefit for Switzerland to have more people, well integrated into Swiss society, participating actively in debates and political decisions.

EXPLAINED: How to fast track permanent residency in Switzerland

Swiss naturalisation

Swiss naturalisation procedure is either ordinary i.e. takes 1-2 years – or is fast-track / facilitated – which takes a maximum of one year. (Covid delays within cantonal immigration offices need to be taken into consideration).

As a general rule – fast-track naturalisation is for those who are “entitled” to naturalisation subject to all material conditions being fulfilled (absence of criminal record, residence in Switzerland etc.) whereas as ordinary naturalisation is for those whose naturalisation depends on the discretion of the authorities.

Due to the complexity of the conditions, this article will not explain all the formal and material conditions for naturalisation.

Fast-track naturalisation

There are several options for fast-track naturalisation under the Swiss federal law on nationality. This article only concerns one of the options – third generation naturalisation – available for certain people till 18th February 2023.

The conditions for third generation fast-track naturalisation are provided by article 24a of the Swiss federal law on nationality:

Since February 2018, foreigners under the age of 25, whose grandparents were already established in Switzerland, can request fast-track naturalisation. (Articles 24a LN and 15a OLN).

A child of foreign parents may, on application, be granted facilitated naturalisation 

if the following conditions are met 

  1. at least one of the grandparents was born in Switzerland or it can be plausibly established that the grandparent had a B, C, L or A permit or a carte de Legitimation in Switzerland. 
  2. at least one of the parents had a C permit, had lived in Switzerland for at least 10 years and had completed at least five years of compulsory schooling (i.e. primary and middle school) in Switzerland; 
  3. He was born in Switzerland; 
  4. He has a C permit and has completed at least five years of compulsory schooling (i.e. primary and middle school) in Switzerland. 

2 The application must be submitted before the age of 25. 

3 A naturalised child acquires the citizenship of the commune of residence and the canton of residence that is his at the time of naturalisation.

The transitional provision – article 51a LN, provides that:

Third-generation foreigners who, on 15 February 2018, had reached the age of 25 but had not yet celebrated their 35th birthday; and

Who fulfil the conditions of article 24a LN ( and other material conditions of the Swiss federal law on nationality), can therefore apply for fast-track naturalisation until 15 February 2023 at the latest, provided they have not yet reached the age of 40 at the time of the application.

To recap

Did your grandparents live in Switzerland?

Did your parents live in Switzerland?

Are you under 40 and living in Switzerland?

If yes, you may be eligible for third generation fast-track naturalisation.

The information in this article was prepared by Renuka Cavadini of Page & Partners. 

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