Stamping out for the toilet break?

The Cantonal Court of Neuchâtel has ruled that an employer may require its employees to clock out when going to the toilet. In a specific case, employees of a company in Neuchâtel were to interrupt their working time by clocking out when they briefly left their workplace to relieve themselves. This short unit of time is not considered working time and is therefore not remunerated by the employer. This practice was uncovered in 2021 during a coronavirus inspectionby the Office for Relations and Working Conditions and brought to court. However, the court confirmed that the employer was acting lawfully and that the obligation to clock out during toilet breaks was permissible.

The terms “working time” and “break” play an important role in this decision. The employee fulfills his work obligation by performing work over time, i.e. by working hours. The definition of working time has repeatedly given rise to debate in the past. There is no legal definition of working time in Swiss law, neither in the Code of Obligationsnor in the Labor Act (ArG).

The only definition of working time can be found in Ordinance 1 to the Employment Act (ArGV 1), where it is stated inArt. 13 Para. 1 ArGV 1 that working time is the time during which the employee must remain at the disposal of the employer.

However, the performance of working time does not require the employee to be active. The employee can also make himself available to the employer by being on call or by being idle and thus perform working time. The decisive factor is that the employee spends his time with the employer's will in the employer's interest. In doing so, the employee is at the (economic) disposal of the employer. A distinction is made between cases where the employer orders the performance of working time, where the performance of working time is necessary or where the performance of working time is tolerated by the employer.

A break is an interruption of work that is necessary for physiological reasons and is regulated in Art. 15 ArG. This determines the minimum duration of the sum of the interruptions of work in a day with breaks and states in paragraph 2 that there is no break if the employee is not allowed to leave his workplace. Art. 18 ArGV 1 contains more precise rules on breaks and states in paragraph 2 that breaks are to be taken around the middle of the working day. Breaks within the meaning of Art. 15 ArG do not generally count as working time and therefore do not have to be paid.

For a work interruption to qualify as a break, the time must be used by the employee to eat and rest. According to the Guidelines to the Labor Act and Ordinances 1 and 2 of the State Secretariat for Economic Affairs (SECO), a work interruption for technical reasons is not considered a break if the employee cannot rest because, for example, the time is too short or it is not clear when work must be resumed after the break. Some scholars are of the opinion that Art. 15 ArG does not apply to sporadic, short interruptions to work (so-called short breaks), which include not only trips to the toilet but also telephone calls that cannot be postponed or breaks for smoking (Kurzkommentar zum ArG, Gross/Frunz/Marro;Überstunden- und Überzeitarbeit, Bregnard-Lustenberger/Judith). In the opinion of the authors mentioned, these short breaks are not considered breaks within the meaning of the ArG and should therefore be part of working time and be remunerated. However, if such short breaks reach the duration of a normal break, for example if the smoke break lasts 15 minutes, then this time does not have to be remunerated by the employer. This is why many employers demand that smoking breaks be clocked out.

If one follows the interpretations of the relevant articles of law and ordinances of SECO as well as the above-mentioned authors, the result is complications with the interpretations of the Cantonal Court of Neuchâtel. A visit to the toilet describes the satisfaction of an individual's need to go to the toilet. However, to speak of an interruption of work to eat or rest and to qualify going to the toilet as a break seems questionable. After all, going to the toilet is a basic human need for which the employer can be expected to be reasonably flexible. After all, if the employee had to clock outevery time they went to the toilet, it can be assumed that they would set themselves the goal of minimizing toilet visits. This would not be in the interests of the employee's health and well-being and would be contrary to the employer's duty of care.

The court disagrees with SECO and the above-mentioned authors and allows clocking out to go to the toilet. The court thus qualifies going to the toilet as an interruption of work (break which does not have to be remunerated). It argues that the above-mentioned provisions of the ArG and ArGV 1 do not expressly prohibit deducting toilet visits from working time. This contradicts the statements of SECO and the court regarding the reason for the interruption of work. The court states that the reason for clocking out is not recorded, which means that there is no violation of the employee's personal rights. The removal from the workplace has the same consequence regardless of the reason, namely that no work is performed, which is why no remuneration is paid.

This court decision raises many questions and leaves both employees and employers somewhat perplexed. If going to the toilet would qualify as a break, would you also have to clock out if you drink water or take a short screen break to look out of the window?  

‍

Links:

Guidelines on the Labor Act and the ordinances in German/French/Italian

Swiss Labor Act, available in German/French/Italian

About the authors:                                                      

Ueli Sommer is Managing Partner of Littler Switzerland.

You can reach him at +41 44 219 60 61 or ueli.sommer@littler.ch.

Cédric Bamert is a Junior Associate at Littler Switzerland.

You can reach him at +41 44 219 60 62 or cedric.bamert@littler.ch.

‍