Home Office – Legal Framework and Challenges under Swiss Employment Law

Several years after the COVID-19 pandemic, working from home has become an integral part of modern working life. While many employees appreciate the opportunity to better reconcile their professional and private obligations through greater flexibility, many employers increasingly favour a stronger physical presence at the workplace. They justify this preference primarily by citing easier personnel management, more efficient communication, and closer collaboration within teams. Against this background, the question of the respective rights and obligations of employers and employees in connection with home office arrangements has become increasingly important.

Legal Classification

From an employment law perspective, home office does not constitute an independent type of employment contract but rather a specific arrangement within an individual employment contract governed by Articles 319 et seq. of the Swiss Code of Obligations (CO). Its distinguishing feature is merely that the employee performs all or part of their work outside the employer’s business premises, typically at the employee’s residence.

Under Swiss employment law, employees generally have no statutory right to work from home. Whether and to what extent home office is permitted depends primarily on the contractual arrangements between the parties. Relevant provisions may be contained in the individual employment contract, staff regulations, a collective employment agreement, or a separate individual agreement. In addition, the employer may determine the place of work or authorise home office on the basis of its managerial prerogative (right to issue instructions).

However, the employer’s right to issue instructions is limited by statutory provisions, contractual agreements, and the principle of proportionality. Instructions must be lawful and reasonable. Conversely, employees are obliged to comply with lawful instructions in good faith. Where home office has been contractually agreed upon or expressly promised, the employer cannot generally revoke this arrangement unilaterally without valid reasons.

For reasons of legal certainty and evidentiary purposes, it is advisable to record the key terms of any home office arrangement in writing. These should include, in particular, the permitted extent of remote work (maximum percentage of working time), working hours and availability, reimbursement of expenses, provision and use of work equipment, procedures in the event of disruptions to work performance, and, where relevant, the conditions applicable to cross-border home office arrangements.

Reimbursement of Expenses

The question of who bears the costs associated with working from home depends primarily on whose interests are served by the employee performing their work outside the employer’s premises. The situation differs depending on whether home office is voluntarily requested by the employee or required by the employer, or where the employer fails to provide a suitable workplace at its premises.

A distinction must be made between the provision of work equipment and materials on the one hand, and the reimbursement of business expenses on the other. With respect to work equipment, the parties may agree that the employee will use their own devices or materials without receiving separate compensation.

This must be distinguished from the reimbursement of expenses pursuant to Article 327a CO. This provision is mandatory and cannot be excluded by contract. The employer must reimburse all necessary expenses incurred by the employee in the proper performance of their work, particularly where no suitable workplace is provided and the employee is therefore required to use their own home office infrastructure. Where such expenses cannot be determined precisely, they may, depending on the circumstances of the individual case, be estimated by the courts (Swiss Federal Supreme Court, Decision 4A_533/2018, consid. 6.2 et seq.).

Disruptions to Work Performance While Working from Home

Working from home also raises particular issues concerning technical and organisational disruptions affecting work performance. Unlike work performed on the employer’s premises, home office takes place in a private environment over which the employer has only limited control. Consequently, where technical or organisational problems impede or temporarily prevent the employee from performing their work, it is necessary to determine which party bears responsibility for the underlying cause.

Where the disruption is attributable to circumstances within the employer’s sphere of responsibility, the employer generally bears the corresponding operational risk. The assessment may differ where the disruption originates within the employee’s private sphere, for example due to an inadequate internet connection, a power outage, or other deficiencies affecting the employee’s home working environment. The legal consequences depend on the specific circumstances of each individual case.

To avoid future disputes, it is advisable to regulate the parties’ respective rights and obligations in the event of technical disruptions expressly in the employment contract. Such provisions may specify the minimum technical requirements for the home office workplace, the employee’s obligation to report technical issues without delay, and the measures to be taken in the event of prolonged interruptions. The parties may also agree that, where reasonably possible, the employee must continue working from the employer’s premises if work from home is no longer feasible. Furthermore, the employer may reserve the right to revoke or restrict permission to work from home if the necessary technical or organisational requirements for proper work performance are no longer fulfilled on a permanent or recurring basis.

Cross-Border Home Office

Particular attention must be paid to the Framework Agreement on the application of Article 16(1) of Regulation (EC) No. 883/2004 concerning cross-border telework. Since 1 July 2023, this agreement has allowed employees residing in Germany, Austria, France, Italy (since 1 January 2024), or Liechtenstein to remain subject to the Swiss social security system despite regularly working remotely across borders, provided certain conditions are met. The principal requirement is that cross-border telework accounts for less than 50% of the employee’s total working time.

Conversely, cross-border commuters residing in Switzerland who work for employers established in Germany, Austria, France, Italy, or Liechtenstein may likewise remain subject to the social security system of the employer’s state, provided that their telework performed in Switzerland amounts to less than 50% of their total professional activity.