On 27 September 2020, the Swiss electorate voted with a clear majority to introduce two weeks of paternity leave which will enter into force on 1 January 2021. This has resulted in adjustments to the employment law provisions in the Code of Obligations (CO).
1. Previous ‘paternity leave’ regulation
Until now the CO did not include any provisions that explicitly grant time off in connection with becoming a father. An entitlement for expectant fathers was previously derived from Art. 329 para. 3 of the CO, which sets out the granting of extraordinary time off – in other words, necessary time off to deal with urgent, personal matters during working hours. But how much (paid) time off the father got was determined by the practice of the company or the sector. Employers regularly defined the number of days off granted in the personnel regulations or issued them based on the collective employment agreement (GAV) applicable to the company.
If a company previously defined paid days off for paternity in the employment contract or in a company regulation, these former provisions need to be adapted to take into account the new statutory regulations.
2. New regulations
2.1. Conditions for entitlement to and termination of paternity leave
The CO now explicitly regulates the entitlement to paternity leave in Art. 329g. In order for paternity leave to be granted to the employee, he must be the child’s legal father at the time of its birth or become its legal father within the following six months. The employee must provide proof that he is the legal father (for example, the employee is married to the mother of the child or acknowledges paternity). Whether the employee is compensated for this leave (--> paternity leave pay) in addition to their holiday entitlement is governed by the provisions of the Loss of Earnings Compensation Act (LECA). This means that an employee who is entitled to paternity leave will not necessarily be awarded paternity leave pay if they do not meet one of the conditions set out in Art. 16i LECA.
The entitlement to paternity leave begins on the day of the child’s birth if this is from 1 January 2021 onwards. As of this date, the employee has a six-month period during which he can take two weeks of paternity leave. The leave can be taken as individual weeks or days (to enjoy long weekends, for example).
Even though this is not explicitly governed by the CO, the provisions of Art. 16j LECA must also be taken into account with regard to the expiry of entitlement to paternity leave. According to these provisions, the paternity leave expires after the six-month period, once the daily allowance has been used up, in the event of the father’s death, the child’s death or if the paternity is denied.
Art. 329g CO is a partially mandatory provision that cannot be amended to the detriment of the employee (see also Art. 362 CO). Paternity leave is an employee right but is not an obligation. In other words, the employee is not obliged to take paternity leave.
As is the case with annual leave, when the paternity leave is taken must be determined together with the employer. But the employer must give as much consideration as possible to making sure the employee’s wishes are compatible with the interests of the company. In the case of paternity leave, strong consideration must be given to the interests of the employee in terms of when to take the leave not just on the basis of urgent family interests, but also the fact that leave must be used up before the end of a six-month period.
2.2. No reduced holiday entitlement as a result of paternity leave
Art. 329b CO sets out the conditions for when an employer may reduce an employee’s holiday entitlement during a year.
According to Para. 1, the employer can reduce the employee’s annual holiday entitlement by one-twelfth if the employee is prevented from working for more than a month for a reason that is their own fault.
If the employee is prevented from working for reasons relating to their person (illness, accident or legal obligations etc.), but which are not their own fault, the holiday entitlement is reduced after the second complete month according to Art. 329b Para. 2 CO.
The law now also states in Art. 329b Para. 3 CO that an employee’s holiday entitlement may not be reduced as a result of taking paternity leave.
2.3. Extension of the notice period
Art. 335c Para. 3 CO stipulates that in the event that notice is served by the employer and the employee is still entitled to paternity leave before the employment contract terminates, the notice period will be extended by the number of unused days of leave. For Art. 335c Para. 3 CO is also a partially mandatory provision that cannot be amended to the detriment of the employee pursuant to Art. 362 CO.
The following legal consequences are derived from this new provision:
- This provision does not apply to notice served during the probationary period, as the regulation of Art. 335c CO only relates to notice served after the probationary period.
- Notice served during paternity leave applies; unlike notice for a pregnant employee or a mother during maternity leave, which is invalid. The temporal protection against dismissal in Art. 336c CO does not apply to paternity leave.
- The notice period may only be extended when the employer gives notice of dismissal. If the employee hands in their notice, this does not result in an extension of the notice period.
A decisive moment for extending the employment contract is the termination of the employment contract. In this context, the law stipulates that the employee must have claimed their paternity leave entitlement pursuant to Art. 329g before the end of the employment contract in order for the notice period to be extended.
It remains to be clarified whether, as a result of extending the notice period, the end of the employment contract falls on a notice date at the end of a month or whether the employment contract ends directly after the expiry of the remaining paternity leave. Generally, the employment contract should terminate as soon as the paternity leave has been taken, because the new provision does not explicitly state that the employment contract is extended to the following end date (see Art. 336c Para. 3 CO in connection with waiting periods: «Where a specific end-point […] has been set for termination of the employment relationship and such end-point does not coincide with the expiry of the resumed notice period, the latter is extended until the next applicable end-point.”).
Conclusion
With the introduction of paternity leave, the employee is due to the changed family situation now able to play a bigger role at home following the birth of their child. Even though it is clear whether and when a person is entitled to take paternity leave, there is still uncertainty as to when exactly the employment contract ends after an extension of the employment contract due to notice being served by the employer. This issue will need to be clarified through judicial practice.
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