A cantonal court in Switzerland has ruled in favour of an employer who requires their workers to clock out when they go to the bathroom. The Swiss watchmaker involved in the case argued that toilet breaks should not be counted towards working hours, while cantonal officials have advised against other companies following suit.
Swiss watchmaker forces workers to clock in and out for bathroom breaks
Our story starts in 2021 when the Office of Labour Relations and Conditions (ORCT) in Canton Neuchâtel carried out a COVID compliance check at watchmaker Jean Singer et Cie. During the investigation, officials noticed that staff at their site in Boudry were required to clock out of work every time they visited the bathroom. Toilet breaks were then timed and treated as non-working hours.
In January 2022, the ORCT referred the case to the State Secretariat for Economic Affairs, demanding that Jean Singer et Cie scrap the practice immediately. A month later, the dial manufacturer rejected the request, forcing the office to issue a written ban. In the ban, the ORCT wrote that "work interruptions that meet physiological needs cannot be considered as breaks" and that the practice could "encourage staff to hold back or not hydrate, which could lead to serious physiological problems."
After various back and forths that saw Jean Singer et Cie’s appeals rejected by the Department of Employment and Social Cohesion, the company chose to take the issue to the cantonal court of Neuchâtel ."Whether it's a toilet break, a meal break, a rest break, a phone break or a walk in nature: regardless of the reason for the break, it must be clocked in," Jean Singer et Cie’s lawyer said.
Neuchâtel court rules companies are allowed to record bathroom breaks
In their decision published in late September, the court ruled in favour of the company, arguing that toilet breaks technically “constitute interruptions of work, since the worker is not at the employer's disposal during this period.” They explained that the concept of a work break is not defined in Swiss labour law, meaning that they are unable to ban employers from asking their workers to clock in and out to go to the bathroom. This is the first time the issue has been settled in court.
However, the ruling also noted that while the company is allowed to record employees’ bathroom breaks, they must do it in a way that does not discriminate against women. "They are faced with the menstrual cycle, which begins with menstruation. This physiological phenomenon requires compliance with basic hygiene rules and, consequently, more frequent, or even longer, trips to the toilet," they wrote.
Swiss unions say the case in Neuchâtel is part of a deeper problem
Speaking to RTS, Neuchâtel state councillor in charge of employment Florence Nater (SP) said that she took note of the court’s decision but hoped “that this judgement does not have any repercussions in other companies that could be tempted to have this type of practice."
The Neuchâtel branch of the Unia trade union was also concerned, with spokesperson Solenn Oschner telling RTS that the problem goes much deeper than timed toilet breaks: "Other problems are brought up to us very regularly. I am thinking in particular of being timed when we go to the toilet, to see how long we take, or having to bring a medical certificate when your manager thinks you have gone to the toilet too often in a working day."
For its part, the State Secretariate for Economic Affairs acknowledged the ruling of the court, but reaffirmed its opinion that "a measure subjecting employees to complete control of their actions within the company is not in itself compatible with respect for the principle of the personal integrity of workers."