– December 13, 2022

Am I entitled to a wage during my holidays, or can the employer integrate my holiday pay directly into my total wage?

The Code of Obligations regulates whether and under what conditions holiday pay can be integrated into the total wage.

Art. 329d para. 1 CO states that the employee is entitled to the entire wage that falls on her holidays. This is a relatively mandatory provision in the sense of Art. 362 para. 1 CO. However, Art. 329d para. 2 CO is absolutely mandatory, according to which the employee’s holiday entitlement may not be covered by cash benefits or other benefits as long as the employment relationship still exists. According to the Federal Supreme Court, this means that the holiday pay must generally be paid when the holiday is actually taken.

It is also not permitted to integrate the holiday pay into the total salary. The Federal Supreme Court allows an exception to this rule if it is difficult to calculate the holiday entitlement in advance. In the case of employees who, for example, are employed part-time, on call or on an hourly basis and therefore work very irregularly and with widely varying working hours, holiday compensation may be permissible by way of exception.

In addition to the irregular activity, according to the Federal Supreme Court case law, two further conditions must be fulfilled for the holiday pay to be directly included in the total salary: firstly, the share of the total salary resulting from the holiday entitlement must be clearly and expressly specified either as a fixed amount or as a percentage (holiday supplement of 8. 33% for four weeks’ holiday per year, 10.64% for five weeks’ holiday and 13.04% for six weeks’ holiday) must be clearly and explicitly stated on the employment contract, and secondly, the amount of the holiday allowance must be shown on the respective pay slips.

If it cannot be proven that an employee is engaged in irregular work or if the share of holiday compensation is not clearly evident from the employment contract and the pay slip, the holiday pay may consequently not be integrated into the total pay. During the employment relationship, it is therefore prohibited to cover holiday entitlements with corresponding cash benefits and other benefits. If the employer pays the holiday pay without meeting or complying with the aforementioned requirements, he bears a so-called double payment risk.

If you have any questions regarding your employment contract or the payment of your holiday entitlements, our lawyers will be happy to advise you.