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Employee’s Duty of “Double Loyalty” to Employer

Precedential Decision by Judiciary or Regulatory Agency

Authors: Ueli Sommer, Partner, and Regula Rhiner, Senior Associate – Littler | LEL

On August 21, 2023, the Federal Administrative Court ruled that a (former) employee of the Swiss Federal Administration who represented Switzerland internationally, among other things, had a duty of so-called “double loyalty” towards his employer, meaning that he not only was obligated to loyalty towards the Swiss Federal Administration in his work-related (internal) conduct, but also - albeit to a lesser extent - outside of his work (off-duty). The employee – who was dismissed without notice had, inter alia, criticized the Federal Administration in an aggressive tone on social media with regard to the Swiss COVID app during the pandemic, the granting of an emergency loan to an energy group, as well as his employer's (inclusive) gender language in an email to the entire staff.

The employee’s statements might, in principle, be protected by the employee’s constitutional right to freedom of expression and therefore have to be weighed against the Federal Administration’s right to loyalty. The Federal Court concluded that the latter prevail as the employee's statements were likely to cause lasting damage to the reputation of the Federal Administration. It thus confirmed the legality of the employee’s dismissal.