Nathalie Subilia-Bigler and Sandrine Giroud on the provisions of the new Swiss Code of Civil Procedure relevant for labour disputes (January 2011)

Labour disputes have been affected by the entry into force of the new unified Swiss Code of Civil Procedure (the “SCCP”), which replaced as of 1 January 2011, the specific procedural rules of the 26 Swiss Cantons. Labour law litigation is now governed by standard provisions that apply to all civil litigation proceedings nationwide. These provisions are explained by two of LALIVE’s civil litigation specialists, Nathalie Subilia-Bigler and Sandrine Giroud, in an article by the Society for Human Resource Management (SHRM) “New Swiss Civil Procedure Code Imposes Mandatory Mediation” (25.01.11).

Proceedings can be conducted either by ordinary procedure or by so-called simplified procedure. The ordinary procedure applies essentially to all financial disputes for at least CHF 30’000.- and to non-financial disputes that are not governed by the simplified procedure. The simplified procedure applies to financial disputes with a value at stake below CHF 30’000.-. The simplified procedure is less formal: claims may be filed orally before the Court or in writing, it is not necessary to substantiate a claim, and a deadline will not automatically be set to the defendant to answer the claim in writing.

Furthermore, in accordance with the Swiss legislator’s wish to promote out-of-court settlements, all labour law proceedings start with a mandatory conciliation phase, although in certain cases, the claimant may renounce to the conciliation (e.g., if the defendant’s seat is abroad or in case of disputes under the Gender Equality Act). The new provisions also provide specific mechanisms for very low value disputes.