In Swiss law, the certificate of employment is a written document that attests to the nature and duration of the employment relationship between an employee and their employer. It is issued by the employer at the request of the employee and must contain certain mandatory information.
Obligation to Issue a Certificate of Employment
The employer is obliged to provide a certificate of employment. Indeed, it is the responsibility of the employer to provide a certificate of employment to their employees, who can request it at any time according to art. 330a al. 1 CO. This certificate can be issued as an interim certificate during the employment relationship and as a final certificate at its conclusion.
The legislation does not set a deadline for the production of a certificate of employment. However, in practice, when an employee expressly requests it, the employer usually needs to issue the certificate within a few days. As for the final certificate, which is issued at the end of the employment relationship, it must be delivered within a reasonable time. Employees have the possibility to request a certificate of employment for a period of ten years from the end of the employment relationship, either from the employer or by taking legal action in case of the employer’s refusal.
This document must include several essential pieces of information, notably the identities of the employee and the employer, as well as the start and end dates of the employment. Moreover, the certificate of employment must include a detailed list of the important functions and main activities of the employee during their period of employment, along with their respective durations.
The employee’s performance appraisal must also be mentioned in the certificate of employment, including the quality and quantity of their work. Finally, the certificate must include an appraisal of the employee’s behavior, as well as the valid signature of the employer with the date of issuance of this certificate of employment.
The certificate of employment must respect formal and substantive conditions, in accordance with commercial practices. Formally, it must be typewritten with a neat computer print on high-quality paper, have linguistic accuracy with correct spelling, and communicate an orderly image without any erasures. As for substantive conditions, appraisals must be based on usual criteria, be complete (notably, the appraisal of behavior must not be omitted) and limited to the data necessary for the appraisal of performance and behavior of the worker. Statements must be truthful and formulated in a benevolent manner, but always in respect of the duty of truth. Ambiguous formulations and the use of coded language are also prohibited.
However, according to art. 330a al. 2 CO, if the employee expressly requests it from their employer, the certificate can exclusively cover the duration and nature of the employment relationship. This is referred to as a limited employment certificate or a work attestation.
The certificate of employment must be written and its wording should be clear and understandable.
Final or interim certificate
Every worker has the right to a complete certificate of employment under Swiss legislation. This means that the employer is required to provide a clear and comprehensive appraisal of the employee’s behavior and the quality of their work. Additionally, employees can request an interim certificate at any time for various reasons such as a change of supervisor, restructuring, application for admission to a training institution, or the imminent end of the contract. The interim certificate must be written in the present tense, even though the end of the employment relationship is foreseeable, especially during the notice period. However, there is no right to a periodic certificate. Furthermore, the content of the interim certificate is the same as that of the final certificate of employment.
Truthful and benevolent
The certificate of employment must be a truthful and benevolent document towards the employee. However, it can be challenging for the employer to meet this requirement in cases where negative facts must be mentioned, as the employer is obliged to tell the truth. Nevertheless, only facts relevant to the overall appraisal of the employee should be mentioned, isolated incidents or trivial facts have no place in the certificate of employment.
Regarding prolonged absences due to illness, the Federal Tribunal considers that a negative fact must be mentioned if it is relevant for the overall appraisal of the employee. Special situations may be considered as objectively justifying a contract termination, particularly when the employee’s illness has had a significant impact on their performance or behavior, or when doubts have been raised about their ability to fulfill their duties.
The certificate of employment must also mention prolonged work interruptions due to illness if they are significant in proportion to the total duration of the contract and if their omission could lead to a misleading impression about the professional experience gained. However, each situation must be examined on a case-by-case basis.
In summary, it is important to respect the legal conditions for establishing a certificate of employment to avoid potential conflicts between the concerned parties.