Duty of loyalty
Every employee, whether an executive, employee or trainee, is bound by a duty of loyalty to his or her employer. Executives and people with high management functions have an increased duty of loyalty. Their behavior will be judged more rigorously, particularly in the event of termination with immediate effect.
This obligation has many consequences. It requires the employee to take all measures to safeguard the legitimate interests of the employer, according to the rules of good faith. But what does this duty of loyalty imply in practice?
Any competing activity of an employee is likely to have serious consequences for the employer and to cause economic losses. An employee who starts his own business or works for a competing company during the employment relationship in his free time is in serious breach of his duty of loyalty.
In principle, if an employee works part-time, he or she is entitled to combine jobs and to carry out a secondary activity within certain limits.
What about an employee who has a side job at night, such as a DJ in a nightclub, and who is too tired to do his job properly during the day? Or a secretary who works overtime at both jobs and exceeds the legal maximum working week? The violation of the duty of loyalty is never far away.
At certain times of the year, the employer may face an increase in workload. The employee's duty of loyalty requires him to work the overtime required by the employer. However, there are specific and limiting situations where the employee may refuse.
Out of sight, out of mind... The telecommuting employee can quickly become complacent and forget about his or her duty of loyalty. This obligation is crucial when working from home, where data security risks are increased and working hours are not always respected.
The employment relationship is not always a smooth one. Conflicts in the workplace have always existed. However, if an employee violates the personality of a colleague or boss, in particular by behaving violently towards them, he or she is in breach of his or her duty of loyalty and risks termination, with immediate effect depending on the case.
Inability to work
An employee who is ill or has an accident is sometimes unable to work. It is in the employer's interest to know this as soon as possible in order to organize a replacement. The employee must inform his employer of his inability to work as soon as possible and provide a medical certificate, in a language that the employer can understand.
If the employee's situation changes, he or she must immediately inform the employer and provide a new medical certificate if the inability to work continues.
The employee must make every effort to get back on his feet as quickly as possible. If the employer catches the employee performing activities that are incompatible with his or her state of health, the employer may sanction the employee.
At a company party, many employees get carried away by the rather relaxed atmosphere and drink more than they should. A staff party is still a professional event. An employee who indulges in inappropriate or improper behavior violates his or her duty of loyalty.
Release from the duty to work
A dismissal sometimes requires a release from the duty to work. However, the employee remains bound by his or her duty of loyalty until the end of the employment relationship. The employee is not allowed to do whatever he or she wants. This is particularly problematic when the employee starts a new job, especially if it is in competition with the former employer.
Religion in the workplace
Every employee has the right to religious freedom. This means that, in principle, they can wear a veil, pray or fast. However, in the professional context, this freedom is restricted by the duty of loyalty. The employee must safeguard the interests of the employer and perform his work properly. If the employee is unable to do so, e.g. because of fasting or frequent absences for prayer, the employer can and must take appropriate measures.
Between the employees' freedom of expression and the company's image, the rules relating to dress depend on the employer's activity and the employee's function. The balance is sometimes difficult to find when it comes to dress code at work. The duty of loyalty requires the employee not to damage the company's image and to dress properly. In this context, a worker, a secretary or an insurance agent in direct contact with customers are not in the same position.
In the relative privacy of social networks, employees believe they are protected and sometimes allow themselves to say things that violate their duty of loyalty. An employee who strongly criticizes his employer or who posts a picture of a prototype to share his professional projects with his friends... The employer must react quickly to limit the damage.
The situation is specific when the company has an ideal goal, notably political, associative or spiritual. Does the employer have the right to sanction an employee who publishes comments that go against the ideals advocated by the company?
Out of sight, out of mind? An employee on sabbatical tends to forget that he or she is still bound by the employment contract and the duty of loyalty. They can't disclose confidential information about their employer, criticize their employer on social media or work for a competing company while on unpaid leave.
Recording in the workplace
Summon to an interview where the employee is at risk of being fired or sexually harassed, attempt to track down a colleague who is committing a criminal offence: there are many reasons why an employee may record his colleagues or his superior without their knowledge. Such a recording can be damaging to the personalities of those involved and can violate the employee's duty of loyalty.
Theft and other criminal offences against the employer or one of its clients are likely to cause particularly significant damage and are likely to break the bond of trust inherent in the employment relationship. An employee who engages in such conduct risks termination with immediate effect, even if the stolen property is of little value.
An employee becomes aware of wrongdoing on the part of his or her supervisor or abuse of customers by colleagues. This often puts him or her in an awkward position. By virtue of his duty of loyalty, the employee must denounce the reprehensible facts he has witnessed. Yes, but to whom? Can they alert the media? What if the employer, finding him a little too curious, fires him in retaliation? Being a whistleblower is not always a good thing in Switzerland.
Gifts from third parties or suppliers
A particularly grateful customer offers a bottle of wine to an employee. A supplier offers to treat an executive to a gourmet meal followed by an evening at the opera, in exchange for minor services. These situations are sensitive and may constitute, under certain conditions, bribes or even passive bribery under the Criminal Code. The employee who accepts a gift of a certain amount without the employer's knowledge violates his duty of loyalty.