Hardly any field of law touches as many people as directly as employment law, and hardly any is as rich in half-truths. Five misconceptions keep coming up in our practice.
Myth one: \u201cUntaken holidays can be paid out.\u201d In principle, no. Holidays serve recovery and may not be replaced by money during the employment relationship (Art. 329d CO). A payout only comes into question when taking the days is no longer possible before the employment ends.
Myth two: \u201cNotice by WhatsApp is invalid.\u201d The law requires no particular form for notice; an oral or electronic termination can be valid. Two big caveats: first, most employment contracts require written form, and then that applies. Second, the terminating party bears the burden of proving that and when notice was received. Registered mail remains the standard for a reason.
Myth three: \u201cOvertime lapses at the end of the year.\u201d Overtime does not lapse automatically. Without a valid different arrangement it must be compensated with pay plus a 25 percent supplement or, by agreement, with time off (Art. 321c CO). The supplement can only be waived in writing, and for excess hours under the Labour Act stricter separate rules apply.
Myth four: \u201cDuring probation you can leave on the spot.\u201d A notice period applies during probation too, by law seven days (Art. 335b CO). Immediate termination requires good cause, during probation as afterwards. What is true: protection against termination at inopportune times, for example during illness, does not yet apply in the probation period.
Myth five: \u201cA reference letter is a favour and a formality.\u201d The entitlement to a reference exists at any time and is enforceable (Art. 330a CO). The reference must be benevolent and true at the same time; coded devaluations and material omissions are inadmissible. Whoever receives an incomplete or incorrect reference can demand correction, if necessary in court.
The common thread: in employment law, details decide over a lot of money and even more trouble, and most conflicts can be defused early. Our free templates cover the standard cases; for everything else a short conversation is usually the best investment.
