Can my Employer Monitor me if I Have a Burnout?

An employer hires a private detective to investigate his employee, who is on sick leave due to burnout. He doubts his ability to work and dismisses him without notice. Is that allowed?

For 10 years I worked to the full satisfaction of my employer. When the working atmosphere changed due to personnel changes, my health deteriorated to the point of burnout. My boss doubted my inability to work and had me monitored by a private detective. After a month, she reported that I was simply having a good time. As a result, I was dismissed without notice. What can I do?

Johann S.


Inability to Work Does not Oblige to Inactivity

Particularly in the case of burnout and depression, it is important for employees who are unable to work to take their minds off things and do things that give them pleasure. This is the only way they can recover sustainably and become fit for work again – expecting them to be at home in bed around the clock is therefore neither realistic nor helpful.

In Johann's situation, a dismissal without notice is not legally valid. This is because it was issued during a period in which employees are protected from dismissal: 

  • 30 days from the onset of incapacity in the first year of employment
  • 90 days in the second to fifth year of employment
  • 180 days from the sixth year of employment

These periods are governed by Article 336c of the Code of Obligations. Johann therefore has a protection period of 180 days as long as he remains incapacitated for work.

In Case of Doubt, a Specialist Assesses the Situation

The employer has made another mistake. If he doubts the inability of his employee to work, he must have this clarified by a medical officer. Own investigations or the report of a detective are worthless.

Even if the employer is allowed to have the incapacity for work clarified by a medical examiner, he has no right to know the reason for this – medical examiners are bound by medical secrecy. If they violate this with regard to an employee, they can be fined or even imprisoned in accordance with Article 321 of the Swiss Criminal Code.

The only information that a confidential medical professional may communicate is an estimate of incapacity and its duration.

Beware of the Practices of the Sickness Benefits Insurance

In practice, it is often the sickness benefits insurance that wants to have an employee who is unable to work medically examined by one of its own specialists. Even if this procedure is absolutely legal, one should pay close attention to how the insurance company proceeds. Experience shows that the insurance companies systematically demand a far-reaching waiver of medical secrecy from the employees concerned: The doctor would then be allowed to determine and disclose more than the mere inability to work and the duration, which can be problematic.

If you are in a similar situation and need advice, contact our experts in legal advice. The service is free of charge for our members.


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