A Reflection Period of Two Days May Be Sufficient; the Employee May Possibly even Waive this Reflection Period
What was this case about?
A was employed by the Central Compensation Office
("CCO") as system and network
administrator since 1 September 2014. His notice period was three
months to the end of a month.
On 25 November 2020, A's division head approached A and asked
him to follow him to a conference room where A's direct
superior and two members of human resources were waiting for him.
A's direct superior and the division head then explained to A
that collaboration with him had become very difficult. To amicably
end the employment relationship, CCO offered A a mutual termination
agreement. At the same time, they handed over a letter in which CCO
described the facts and his shortcomings and granted A a deadline
of two days, i.e., until 27 November 2020, to assess the offered
agreement and to return a signed copy thereof.
At the meeting, A asked for some further information about his
shortcomings. He then re-read the agreement and requested an
amendment, namely that CCO pay him his salary until June 2021. One
of the members of human resources told A that the offer already
included one additional month's salary, but that CCO was
willing to pay A one additional month on top. A accepted this
offer. He signed the agreement, after having asked one of the
attending individuals to lend him a pen.
Pursuant to the signed termination agreement, A's employment
with CCO ended on 30 April 2021. CCO would pay A his salary until
that date but would put him on garden leave with immediate effect.
Moreover, CCO would provide A with a work certificate by 30 April
2021. Finally, CCO would pay him an outplacement of six months or
CHF 10'000.
A later claimed that the termination agreement was invalid, among
other reasons because CCO failed to grant him a sufficient
reflection period as required pursuant to the Swiss Federal Supreme
Court's case law.
How did the Swiss Federal Supreme Court decide?
The Swiss Federal Supreme Court rejected A's appeal and objections. CCO had actually granted A a deadline of two days, as evidenced by the letter handed over to A at the meeting of 25 November 2020. Moreover, CCO and A had entered into negotiations about the termination agreement, which resulted in some changes in A's favor. The Swiss Federal Supreme Court thus decided that CCO had granted A the required reflection period and that the termination agreement was indeed valid and binding.
Why is this case important?
The employment relationship between CCO and A was governed by
Swiss public employment law. However, pursuant to legal doctrine as
well as the Swiss Federal Supreme Court, the respective principles
resulting from Swiss private employment law applied nonetheless.
The decision is thus also important for private law employment
relationships governed by the Swiss Code of Obligations.
Pursuant to Swiss case law, a termination agreement is invalid and
ineffective if the employer did not provide the employee with an
appropriate reflection period before signing the agreement. In
practice, the minimum duration of this reflection period is
uncertain, especially because of insufficient guidelines.
Furthermore, it is not entirely clear whether the employee may
voluntarily waive this reflection period.
In this case, the Swiss Federal Supreme Court accepted a reflection
period of two days as sufficient. Moreover, and perhaps even more
importantly, the court accepted that A signed the termination
agreement on the same day that the agreement was offered to him and
thus A effectively waived the reflection period that CCO had
offered. The case thus casts a new light on the employer's
formal duties when offering a termination agreement to an
employee.
Of course, the appropriateness of and compliance with the
reflection period must be assessed in each individual case. In the
case at hand, CCO and A did indeed negotiate the termination
agreement; moreover, CCO made some additional concessions to A
because of these negotiations. These two particularities of the
case likely affected the assessment of the reflection period's
appropriateness in CCO's favor. Still, given that Swiss public
employment law is more employee friendly than Swiss private
employment law, this case provides hope that the Swiss Federal
Supreme Court may also be open to pragmatic solutions regarding the
reflection period in private law employment relationships.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.