Basic legal principles

In respect to HIV/Aids at the workplace, there are various laws and provisions to be adhered to. The following provides a quick overview of the salient legal provisions:

Data protection

Art. 13 Federal Constitution: right to privacy (in German PDF 689 KB; in French PDF 702 KB)

  1. Every person is entitled to respect for his/her right to privacy in his/her personal and family life, within his/her home, and as regards his/her communications by post and telephone.
  2. Everyone has the right to be protected against the misuse of his/her personal data.

Art. 28 Civil Code: protection against violation of personality (in German PDF 1210 KB; in French PDF 1217 KB)

  1. Any person whose personality is unlawfully violated may apply to the court for protection against those involved in such violation.
  2. An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law.

Art. 4 Data protection: principles (in German PDF 525 KB; in French PDF 520 KB)

  1. Personal data may only be processed lawfully.
  2. Its processing must be carried out in good faith and must be proportionate.
  3. Personal data may only be processed for the purpose indicated at the time of collection, that is evident from the circumstances, or that is provided for by law.
  4. The collection of personal data and in particular the purpose of its processing must be evident to the data subject.
  5. If the consent of the data subject is required for the processing of personal data, such consent is valid only if given voluntarily on the provision of adequate information. Additionally, consent must be given explicitly in processing sensitive personal data or personality files.

 

Contract law (Swiss Code of Obligations (in German PDF 1630 KB;in French PDF 1648 KB);  employment law (in German PDF 546 KB; in French PDF 553 KB))

Art. 328b Swiss Code of Obligations: protection of the employee's personality

The employer may use the employee's data only when such data relate to the employee's suitability for employment or are in line with the employment contract. Furthermore, the provisions of the Federal Law on Data Protection of 19 June 1992 (Bundesgesetz über den Datenschutz, in German PDF 525 KB; in French PDF 520 KB) shall apply.

 

Art. 335 Swiss Code of Obligations: notice of termination in general

  1. An open-ended employment contract may be terminated by either contractual party with notice.
  2. The party giving notice shall, upon request of the other party, state in writing the reason for notice.

 

Art. 336 Swiss Code of Obligations: abusive notice of termination

The notice of termination of an employment relationship is abusive if a party gives it:

  1. because of a feature inherent to the personality of the other party, unless such feature relates to the employment in question or significantly impairs cooperation within the company;
  2. because the other party exercises a constitutional right, unless the exercise of such right entails neglecting a duty arising from the contractual relationship, or significantly impairs collaboration among company employees;
  3. with the sole intent of frustrating claims of the other party arising out of the employment contract;
  4. because the other party asserts in good faith claims arising from the employment contract;
  5. because the other party performs compulsory Swiss military or protection service, or civil service, or a legal duty not voluntarily assumed.

 

Art. 336c Swiss Code of Obligations: notice of termination at an improper time

  1. Upon expiration of the probation period, the employer shall not terminate the emploment relationship:
    1. during the other party's performance of compulsory Swiss military or protection service, or civil service, and - in case such service lasts more than eleven days - during the four weeks prior to and after the service;
    2. during the period the employee is prevented from performing his/her work fully or partially by no fault of his/her own due to illness or accident for 30 days in the first year of service, for 90 days in the second year of service until the end of the fifth year of service, and for 180 days as of the sixth year of service;
    3. during pregnancy and during 16 weeks following the employee's giving birth;
    4. during the employee's participation, with the agreement of the employer, at a humanitarian service abroad ordered by the relevant federal authority.
  2. Notice given during one of the forbidden periods in paragraph 1 shall be null and void. If the notice is given prior to the beginning of such period, however, and if the notice period has not expired prior to such period, the expiration shall be suspended and shall continue only after termination of the forbidden period.
  3. If, for the termination of the employment relationship, a final date is fixed, such as the end of a month or of a working week, and if such date does not coincide with the end of the continued notice period, the notice period shall be extended until the next following final date.