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28 June 2018

Switzerland: Federal Administrative Court Supports Victim of Burnout

The case demonstrates when an employer can be prosecuted
for the burnout of an employee.
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RE-POSTED JUNE 2018:  Today, we are reading more and more about burnout affecting employees in different kinds of professions.  How many have filed a complaint before the court - do they have any chance of winning?

Federal administrative court supports victim of burnout
by Rachel Walser, srf.ch, 6 September 2017 -

The fact that an employer is sued for stress has so far rarely occurred in Switzerland. This could change.

This case went to the Federal Administrative Court

  • A lawyer had to assess asylum applications at the State Secretariat for Migration (SEM) and communicate many negative decisions. The work had been "enormously burdensome."
  • Despite the high burden, she was left alone by the employer and suffered a stress-induced burnout. Today she is unable to work and receives a dull disability pension.
  • She now claims damages of 360,000 and a satisfaction of 20,000 francs.

The fact that employers are sued for health damages is not new. New and rare, on the other hand, is that it concerns burnout, says the employment lawyer Michael Merker. "You have to prove that there is a causal link between stress and their illness."

High probability of a connection is sufficient

The problem: diseases can have many causes, such as predisposition, life-style, etc. "They must show that it is because of their stress in the workplace," explains Merker. After all, "the courts will validate it if the probability of a connection is high."

This means that the former SEM employee must be able to prove that the burnout was solely caused by work, and not by private stress, and that the employer has violated his / her duty of care.

The first instance dismissed the complaint of the woman: the lawyer had deliberately decided on the position that the work in the area of ​​migration was stressful. However, in the second instance, the Federal Administrative Court has now given the applicant partial rights.

Even if the work is overall stressful, the employer still has a duty to take care, says Merker: "Whenever he sees that the person is not doing well, he has to do something, even if the situation at the workplace is objectively good. "This is very clear in this judgment.

Applicant must prove that she has asked for help

Thomas Geiser, a law professor at the University of St. Gallen, also says that it can be proven quite legally that the employer is responsible for a burnout. It was decisive whether the applicant had asked for help and that he could prove it.

"If it is well documented, what went wrong, if it is well documented that the employer did not care, then that is already demonstrable."   The final verdict in the current case, and whether the action for damages will actually be successful, remains to be seen.

The Federal Administrative Court (Bundesverwaltungsgericht) returned the ball to the lower court. The Confederation must once more have the opportunity to prove that it has done everything to help the woman. It therefore depends on whether or not the Confederation can also rely on good documentation.

The argumentation is ultimately complex and laborious

If the former federal worker is judged to be right, it will attract the attention of imitators, the twolabor lawyers agree: "This is interesting for others who might want to go to trial," says Merker. It may well be that judgments of this kind will increase in the future.

"The verdict of the Federal Administrative Court shows very well how to put forward its cause so that success can be achieved," says Merker. He does not expect a regular explosion of burnout damages. The 40-page judgment shows how elaborate and painstaking the argument is.


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