In April 2019, the Swiss Federal Supreme Court issued a decision related, inter alia, to the compensation of expenses to employees working from home. Because many employees (temporarily) work from home during the Covid-19 pandemic, the decision has increased relevance.
In the case examined by the court, the employee worked for a small business occasionally. The employer did not provide a workplace in its offices, and the employee always worked from home, in a room that was also used as the employer’s archive. The employee claimed, among other things, compensation for the use of his private room when working for the employer. The Swiss Federal Supreme Court upheld the decision of the lower court, which had awarded the employee compensation of CHF 150 (approx. EUR 140) per month for using the private room for business purposes.
Under Swiss law, an employee is entitled to reimbursement of all expenses incurred in carrying out their work. The reimbursement of expenses is mandatory. Reimbursement of expenses is only due if the expenses are ‘necessary’ to perform the work under the employment agreement. In the case at hand, the Federal Supreme Court reasoned that the employer benefited at least indirectly from the employee’s expenses, which is why the expenses in question were reimbursable. The determining factors for the court’s decision seem to have been that:
Thus, the facts which led the court to award a compensation were (very) specific and do not correspond to the most common home office arrangements, under which the employee usually works both in the office and from home alternately. In our view, it is also unlikely that this case law will apply to employees working from home due to the restrictions related to Covid-19, especially considering the temporary nature of the recommendation to work from home. However, an employer implementing remote working on a more general and long-term basis may have to contribute to the costs of a private room used for business purposes, in particular if the employer orders the employee to work from home.
An employer could be obliged to reimburse further expenses in the event of remote working. In our view, however, this obligation should be limited to costs that exceed those incurred by the employee for the private infrastructure which they can usually be expected to have available. For example, if an employee also uses an existing, privately financed standard internet connection for business purposes, the employer should not be obliged to contribute to the costs. If, however, costs are incurred because the employee has to provide specific infrastructure to perform the work which goes beyond the equipment the employee can be expected to have at home (e.g. a particularly fast internet connection), the employer must reimburse these additional costs.