Swiss court allows company to force employees to clock in while going to the bathroom

While half of Europe is debating whether or not to shorten the working day, a Swiss court has issued an unprecedented ruling on the definition of working time, giving an even more precise decision: Swiss company employees must work every time One must keep track of the time one needs to go to the bathroom. Despite understanding that it is considered a critical need, he does not believe that the company should pay for that time.

Origin of the disputeAccording to an investigation by Swiss television channel RTS, the origins of the legal dispute began in 2021, when the Neuchâtel Office of Labor Relations and Conditions (ORCT) verified that measures against COVID-19 were being complied with by the manufacturer. Tha Jean Singer & Cie Watch Faces, which has approximately 400 employees. Inspectors found that employees were in and out of the bathroom. The company did not count bathroom visits as actual work time and, therefore, they were not paid.

The Office of Labor Relations and Conditions acknowledged that this “could encourage employees to overeat or not hydrate themselves, which could lead to serious physical disorders.” In February 2022, it banned Jean Singer & Cie from the practice, alleging that “interruptions in work that meet physical requirements cannot be considered breaks because they are not for recovery” and Chain Swiss According to, violated the principles of Swiss labor law.

What the court says and a big “but”The company appealed against this approval and in its decision the Public Law Court ruled in favor. According to the decision made public this month, the company has the right to force employees to go to the bathroom because current law does not clearly regulate what constitutes a “break” during the workday.

With its decision the court exposes a legal flaw. The law does not explicitly prevent companies from counting bathroom breaks as break time. However, the judgment specified that the obligation to set a clock time for going to the bathroom discriminates against women. “They have to face the menstrual cycle, which begins with menstruation. This physiological phenomenon requires compliance with basic hygiene standards and, as a consequence, more frequent and even longer “, the Court noted, and urged the company to take measures to “minimise”. This inequality.

What does Swiss labor law say?Article 15 of Swiss labor law establishes a series of mandatory rest periods during the working day that must be paid as long as the employee remains at the workplace.

Work should be interrupted by breaks of the following minimum duration:

To. 15 minutes with a daily working day of more than five and a half hours.

B. 30 minutes for a daily shift of more than seven hours

C. an hour with daily shifts of more than nine hours.

The rules do not specify the reason for the interruptions. It only says that employees have the right to regular leave.

company visionPascal Mosch, the company’s legal representative, defended in the Swiss Network report that “Whether it’s bathroom breaks, meal breaks or rest breaks, work activity is interrupted and, therefore, remuneration: that’s why you should sign them”. It doesn’t matter what they plan to use the break for, so the company understands that employees need to go to the bathroom during break periods.

This decision sets a precedentThe decision has been welcomed with concern by Swiss institutions as they fear it will set a precedent and other companies will adopt the same policy. Florence Netter, the state councilor responsible for employment, expressed her concern to RTS: “I hope that this decision will not lead to imitators in other companies who might be tempted to use such practices.”

Swiss employers consider this matter to be genuine. Barbara Zimmerman-Gerster, executive member of the employers’ association, assures in the RTS report that “This is not the direction in which it should go. Given the shortage of qualified workers, companies should ensure that they are attractive and responsive Employees’ needs”.

‘Spain is different’In a decision of the Social Chamber of the Supreme Court, the court ruled in favor of La Caixa employees in their lawsuit because it considered that breakfast time and arrival time were, with a courtesy difference of up to 15 minutes. The beginning of the day should be considered work time.

The Supreme Court also barred companies from deducting bathroom time from employees or counting it as rest or recovery time in their day. Similarly, the High Court specified that the salary exemption cannot be applied for this reason, regardless of whether it is in-person or remote employment, as stated rtve

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Image | Unsplash (Olivier Collet)