Perspectives

Whistleblowing laws in Switzerland, what’s the current situation?

Progress in Switzerland towards providing legal protection for whistleblowers in the private sector has been slow, and attempts to introduce legislation have so far failed.

No current law protecting whistleblowers

Currently there is no law protecting whistleblowers from dismissal by their employer. In 2003, two parliamentary motions for the protection of whistleblowers against dismissal were rejected by the Federal Council (Bundesrat).

The measures that whistleblowers may make to report a suspected irregularity, and the circumstances in which they may report directly to the authorities or the media, have been established by case law in the Swiss courts.

Proposed whistleblowing legislation

In November 2013, the Swiss government proposed new legislation to clarify the law, particularly concerning an employee’s reporting of an irregularity directly to the authorities or the media.

The Council of States (Ständerat) approved an amended draft of the proposed legislation in September 2014, but this was rejected by the National Council (Nationalrat) in 2015 which asked the Federal Council to make its proposal more comprehensible and straightforward.

In 2018, the Federal Council released a revised proposal, with an improved structure and wording but without changing the main subject matter of the legislation.

The three-stage process

Under the latest revised proposal, there is a three-stage process for whistleblowing, but this usually ends at the first stage.

When an employee wishes to ‘blow the whistle’ on an irregularity, he or she must first report internally to the employer, and follow the employer’s rules and procedures for dealing with the matter. Only if all means of reporting internally have been exhausted may the whistleblower go directly to the authorities, and only if there is a public interest concern (a breach of criminal or public law). Disclosure of the matter to the media is permissible only if the authorities fail to take any action.

Although this is the broad structure of the law, there is a lack of clarity about what exactly a whistleblower is and is not allowed to do. An employee in the private sector has a personal responsibility to ensure that the measures he or she is taking as a whistleblower to report an irregularity is proportional to the seriousness of the case.

However this draft was rejected by the National Council in June 2019.

This means that currently the Swiss courts continue to rule on each case separately, without any clear legislation to guide their decision-making. Pressure continues, however, for Switzerland to improve its whistleblowing law.

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