Imposed holiday dates: an employer's right?

Imposed holiday dates: an employer's right?

"My cousin has been working for a small civil engineering company for several years and he still doesn't have a written contract. What's more, does the company have the right to automatically deduct one week's holiday (out of 4 a year) during the Christmas holidays because the boss is closing the company?"

Claudia, Corsier

Article 320 of the Swiss Code of Obligations (CO) states that, unless otherwise provided by law, individual employment contracts are not subject to any special form. It may therefore be concluded in writing, orally or even by telephone or fax, although written form may be desirable in certain cases.

In the event of a dispute, it will be up to the employee to prove the existence of the contract. To do this, he will have to show that there are explicit declarations of intent by both parties to enter into such a contract. There may be several indicators of this, the main one obviously being the payment of a salary. In this respect, the law specifies that the contract is deemed to have been concluded when the employer accepts, for a given period of time, the performance of work which, according to the circumstances, must be provided in return for a salary. Thus, where a person performs work solely for the purpose of obtaining remuneration, the contract of employment may be deemed to exist even if there is no written record of it. It should be noted, however, that certain employment contracts must be concluded in writing, such as apprenticeship contracts, employment contracts for commercial travellers and placement contracts.

Holidays must be taken during the calendar year or service year and must include at least two consecutive weeks. The dates are set by the employer, taking into account the employee's wishes, to the extent compatible with the interests of the company (article 329c CO). However, if it is impossible to reach agreement, the employee will have to comply with the holidays set by the employer. Holidays during the Christmas holidays, which are uniformly imposed on all employees, are company holidays; they are planned and form part of the ordinary course of the company's organisation.

Your cousin's employer is therefore entitled to take a week's holiday over Christmas and deduct it from his holiday pay.