Autor: Marc Schmid

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Dismissal from 55 and early retirement in Switzerland

If someone over the age of 55 loses their job, the question usually arises as to what consequences this will have for retirement. In most industries in Switzerland, it is difficult to find a new job from this age.

Anyone who loses their job from the age of 55 is generally entitled to unemployment benefits for 520 days. At the same time, the end of the employment relationship means that the pension fund’s accumulated retirement capital is transferred to a vested benefits account and pension benefits can no longer be drawn.

Many pension fund regulations allow early retirement only from 58 or 60. This means that a pension can only be drawn from this point in time. This pension is significantly lower than it is with the regular reference from 64 for women, or 65 for men. It should be borne in mind that an early withdrawal of the AHV pension is only possible a maximum of two years before the normal retirement age. This causes an income gap. In addition, also with the AHV only a reduced pension is aligned and for the whole pension duration, i.e., also from 64/65.

In order to prevent a gap in the AHV contributions, insured persons can continue to pay contributions into the AHV. The amount to be paid is calculated on the basis of the insured person’s income. If there is no such income, only a minimum amount must be paid. However, it should be noted that the amount increases depending on the assets.

In case of early retirement, it is usually no longer possible to receive unemployment benefits. However, there is one important exception. In fact, unemployed persons who have been prematurely retired for economic reasons or due to mandatory provisions in the context of occupational pensions may continue to receive unemployment benefits. In addition, it is necessary that the retirement benefits are lower than the unemployment benefits.

In conclusion, it should be noted that dismissals of employment relationships with employees who are already older than 58 may be abusive. An additional criterion is that an employee has been working in the company for a long time, i.e. at least five years. Such dismissals are abusive if they were only made on the basis of the employee’s age. Whether the age is the reason for the termination can usually only be deduced from the circumstances. This is supported by the fact that the employer unexpectedly dismisses the employee without considering alternatives with him prior to dismissal.

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United States respects Swiss data delivery bans

Swiss banks falsely claim that they are threatened with legal proceedings in the United States if they do not provide the data of all the advisors of their US clients.

Various legal proceedings are still underway against their employees in Switzerland because the latter refuse the delivery of your data to the United States. I handle many such cases. The respective banks regularly take the view that the data deliveries are necessary under US law in order not to jeopardise the conclusion of settlements and their execution with the Department of Justice. This is legally incorrect.

The banks fail to acknowledge that US law does not require foreign companies to violate the law of their home country in order to cooperate in criminal proceedings in the United States. Marshall L. Miller, former chief prosecutor of the Department of Justice, gave a presentation on 17 September 2014 on the problem of foreign companies refusing to cooperate in criminal proceedings in the United States by referring to foreign law. He explained that companies that unjustifiably invoke foreign data protection laws expose themselves to great risks. Conversely, this means that a justified reference to foreign data protection law is permissible.

The Department of Justice’s website also contains a handbook for American prosecutors that guides them on how to understand the Foreign Corrupt Practices Act (FCPA). This American law regulates the handling of foreign, illegal constructs in criminal proceedings and affects Swiss banks in particular. In this handbook, it is pointed out that foreign companies have the burden of proof to show that foreign law prohibits data deliveries. If foreign law prohibits data deliveries, this is accepted by US law.

As soon as a Swiss court rules that data delivery is not permitted under Swiss law, the bank concerned is also assured that failure to deliver employee data will have no consequences for it in the United States.

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Win in Swiss Federal Court – Client receives bonus from major bank plus 5% interest

In BGE 4A_155/2019, the Swiss Federal Court ordered a major bank to pay my client a bonus for the year 2012. In addition to the bonus, 5% interest is due from 2013. The bonus was therefore very well invested as a result of the legal dispute.

For more than 10 years, my client had received a bonus of the same amount and more in addition to the fixed salary. After it became clear in 2012 that the bank would dismiss him, he no longer received a bonus for 2012.

The bonus was owed despite the voluntary nature of the dismissal because the bank always paid him a bonus over more than 10 years. On average, the bonus was always slightly higher than the fixed salary. However, the Federal Supreme Court had already ruled before this decision that a bonus is never owed if an employee earns a lot of money even without a bonus. The limit was set at CHF 367,080.

In 2012, the plaintiff received less than CHF 367,080 and was therefore entitled to be paid the difference up to this amount.

The case would probably have been assessed differently, if the bonus had been calculated each year according to certain criteria. It would then have been mathematically calculable. Depending on the specific terms of the contract, it could then have been that the limit should not have been set at CHF 367,080. Then, even more bonus would have been owed. This is an indication that not all “bonuses” are treated equally in legal terms.

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Coronavirus: compulsory holidays not premitted under Swiss labor law

Employer-friendly textbooks wrongly say that compulsory holidays are now permitted. This is not in accordance with Swiss law. The employee must be consulted before holidays are set. He is entitled to three months notice to plan the holidays. He must also be able to coordinate them with the family. Thus, short-term compulsory holidays are not allowed.

However, it is unknown how the Swiss courts will decide. There remains the risk that the current situation will be judged differently, despite the wording of the law. At the same time, however, this means that forced holidays represent a risk for the employer. The employer runs the risk that the ordered holidays will not be deducted from the employee’s holiday credit.

On the other hand, dismissals for economic reasons are permitted, including dismissals with notice of change in order to enforce a lower wage. Short-time work can also be applied for from the unemployment insurance fund.

Marc Schmid is a lawyer in Zurich/Switzerland and specializes in employment law.

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Early AHV pension

It is possible to retire early in Switzerland and receive AHV benefits before the ordinary retirement age of 64 for women and 65 for men. An early retirement with AHV benefits is possible 2 years before the ordinary retirement age, meaning 62 for women and 63 for men.

If workers retire earlier than that, they will have a pension gap since they can only receive their private pension (BVG / Pensionskasse). In case of such an early retirement, it is important, to keep paying AHV contributions because otherwise the AHV pension will be lower once it is paid out.

If you have any questions regarding retirement in Switzerland, feel free to contact me.

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Dismissal after 55 / Unemployment Benefits

When employees in Switzerland are dismissed, they are entitled to unemployment benefits, provided they have worked as an employee for one year during the previous two years. Self-employment does not count. Under certain circumstances, the two year delay can be longer.

When employees are laid off after the age of 55, these same rules apply. However, if an employee decides to opt for an early retirement, said employee is not eligible for unemployment benefits anymore. Unemployment benefits will be paid for 520 at most.

If you have questions regarding early retirement or a termination as well as regarding unemployment benefits, do not hesitate to contact me and I will gladly help you.