Under Swiss employment law, the use of Artificial Intelligence (AI) in personnel decisions such as hiring, promotion or dismissal is not fundamentally prohibited. However, such use is subject to various legal limitations, particularly in the areas of data protection, personality rights protection and the employer's duty of care under employment law.
1. Data Protection
The automated processing of personal data by an AI – for example, to evaluate applications or to analyze performance data – must comply with data protection regulations. According to Art. 328b CO, data processing in the employment relationship is generally only permissible insofar as it is necessary for assessing the suitability of employees for the employment relationship or for the performance of the employment relationship. The principles of proportionality, purpose limitation and transparency must also be observed. A fully automated decision that has significant effects on the data subject (e.g., dismissal) is only permissible under Art. 21 DPA under certain conditions, for example if it is made with the explicit consent of the data subject. However, it has not yet been legally clarified whether such consent can be validly given within the framework of the employment relationship based on Art. 328b CO.
2. Prohibition of Decisions Violating Personal Rights
Employers may not make decisions that violate personal rights or are discriminatory, for example based on gender, age, origin or other protected characteristics. Such discrimination may violate the Gender Equality Act (GEA) or general personality rights. When using AI, there is a risk that it may make such prohibited decisions. The employer is liable for decisions that violate personal rights even if they were made by an AI.
3. Employer's Duty of Care
According to Art. 328 CO, the employer is obliged to take into account the legitimate interests of employees and to fulfill their duty of care. This also includes that employer decisions must not be arbitrary or non-transparent. The use of AI must not result in employees having their rights curtailed or being treated inappropriately.
4. Freedom of Contract and Protection Against Dismissal
In Swiss employment law, freedom of dismissal generally applies, as long as there is no abusive dismissal within the meaning of Art. 336 CO. However, if a dismissal is based solely on an AI decision without human review, this could be qualified as abusive, particularly if the decision is non-transparent or violates personal rights.
Conclusion:
AI may be used in a supportive capacity for personnel decisions under Swiss employment law, provided that employees are informed about this. A fully automated decision regarding hiring, promotion or dismissal is not permitted without the employee's consent and is legally problematic even with consent, particularly if it is made without human review. Employers must ensure that AI-based decisions are made in compliance with data protection regulations, are non-discriminatory and uphold the duty of care.
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MLaw Simon Hampl
Attorney at Law
Certified Specialist SBA Employment Law
Social Insurance Specialist with Federal Certificate
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