Job transfers: What rights do I have?

In the case of a transfer, one (or more) employees are assigned a new job in the same company. The employee is assigned a new area of responsibility and works in a comparable position in a different department. In terms of location, a transfer can also relate to the previous company location or, in the case of large corporations, extend to the national or international level. 

In accordance with Article 321d of the Swiss Code of Obligations (CO), a transfer can be ordered at the request of the employer (employer's right to issue instructions) or decided by mutual agreement between the two parties.

Transfers are often also referred to as a change of work location, change of function or relocation. Functional transfers can basically be divided into two categories: 

Horizontal transfers

A horizontal transfer is a transfer at an equivalent, official level. Particularly in the case of transfers that are made on the instructions of the employer, an attempt is made to assign the employee concerned to a new position that is compatible with their previous job. Accordingly, in the case of horizontal transfers, the new position is at the same hierarchical level as the previous one and has the same or at least a similar job description.

Vertical transfers

In the case of a vertical transfer, the employee's new role is based on a higher or lower job classification than their last position. The person's new position often has a different hierarchical level, a larger or smaller volume of work and a different area of responsibility than before. The salary is correspondingly higher or lower. A promotion is a typical example of a vertical transfer.

Chain transfers

If an internal position is filled by an employee from within the company, his or her position becomes vacant. If this vacant position is also filled by an internal employee, this is referred to as a chain transfer. Chain transfers often occur at the request of the employees themselves when they apply for a vacant position.

Transfers can be decided for a variety of reasons. Below you will find an overview of classic case studies.  

Case 1: Transfer due to site closure

A common reason why employees are transferred to another location of the company is due to site closures. In such a case, the entire company opens its doors in another city or district. It is also possible to relocate to a neighbouring country, for example. 

Case 2: Relocations as an economic measure before redundancies

If the company is in financial difficulties, the first measure is often to reorganise or restructure the business. Departments are often closed, but an attempt is usually made to assign or offer other vacancies in the company to as many of the affected employees as possible. 

In addition to the obligation to inform the workforce, this is a mandatory requirement prior to mass redundancies on the part of the employer (Article 335f CO). 

In such cases of relocation, it is particularly important to remember that your employer must inform the workforce comprehensively about its plans before taking any measures in accordance with Article 333a CO. 

Case 3: Transfer due to unsuitability 

Sometimes employees do their best, but the area of responsibility just doesn't seem to suit them or they are overwhelmed. This results in slow work processes, stagnating figures or customer complaints. At least that's how employers see it, who exercise their right to transfer employees to another position due to their unsuitability. However, it is of course also possible that there is an open dialogue and the employer knows the employee in question well and realises that his or her skills would be better used in a vacant position. 

Case 4: Transfer for welfare reasons 

Welfare reasons on the part of the employer can also speak in favour of a transfer. A classic example is differences between two team members. If these cannot be resolved through discussions or other measures and the employer realises that an employee, for example, is suffering greatly as a result, they can recommend a transfer.

Case 5: Transfer as a disciplinary sanction 

According to Article 38 of the Labour Act (ArG), Swiss companies are permitted to include a clause in their company regulations that provides for transfers as a sanction. A transfer is regarded here as a penalty which, for example, can be an alternative to fines, salary cuts or an extension of the probationary period in the event of a breach of the staff regulations.

Case 6: Transfer at the request of the employee

Employees can also initiate a transfer. One reason for this may be a desire for promotion or the opposite, the urge for less responsibility accompanied by the possibility of a reduction in working hours. It may also be that an employee wishes to change their area of responsibility due to other focal points of interest.

All of these cases are common examples of functional transfers. A relocation of the employee with the desire to still live close to the workplace is also often the reason for transfers to a company location in another district or city.  

Tip: A job transfer within the same company on the instructions of the employer is only valid if it is a purely operational measure and is not accompanied by a reduction in salary.

In Switzerland, a transfer is only legally valid if both parties ultimately agree to the measure. There are two options for the written agreement of transfers that are not based on the employer's instructions. Either the existing employment contract can be expressly or tacitly amended by agreement between the employer and the employee concerned.

The alternative is to issue a notice of termination. A number of requirements must be observed here. For example, it is very important that the notice of termination and the request for amendment are made at separate times.

Special case: Transfer by instruction

If you receive a transfer on the instructions of your employer, you should first read the contractual clauses of your employment contract carefully. Your employer may not ignore what has been agreed here. The 'reasonableness' of the new job must also be checked. If there are differences here, your employer may not transfer you permanently without your consent.

Further limits to the right to issue instructions

There are a whole series of other requirements that your employer must fulfil in accordance with Article 321d of the Swiss Code of Obligations before its authority to issue instructions is actually legally valid. You should not tacitly accept anything before you have checked these. The employer's right to issue instructions is subject to the following restrictions, among others:

• The instructions may not go outside the activities identified in the job specification in the employment contract.
• The instructions must not violate personal rights under any circumstances.
• The instructions must not be harassing (= prohibition of harassment).
• The principle of equal treatment must not be violated by the instructions.
• No instructions may be issued that could have a detrimental effect on health.

Sanctions for non-acceptance of instructions

If the employer has completely fulfilled all the requirements for legally valid instructions and they are reasonable, your employer is authorised to apply sanctions if you do not follow the instruction. Depending on the individual situation, these can range from a warning to dismissal with or without notice and even an action for damages.

Tip:

Despite this possibility, you should never give your premature consent to a transfer instruction for fear of sanctions. If in doubt, seek expert advice from a labour law lawyer so that you know exactly what your rights are and can assert them.

In Switzerland, employment contracts are usually linked either to the respective place of work or to the work function. If the latter applies to your employment contract and therefore does not contain a written place of work, you can define your place of work as the company's place of business. According to the law, this is your local centre of work.

Assignment to other work locations is part of the contract

Your employer has the right to send you on business trips. These may take longer, for example, in the case of sales activities or assembly work. Your area of responsibility remains unchanged. In this case, this temporary type of transfer is part of the contract. According to the law, your employer can decide how far away you can be sent "in good faith and reasonably".

Tip:

If you receive instructions from your employer during a business trip to continue your work at another company, you do not have to accept this. According to the law, your employer is obliged to first obtain your consent for such a measure.