GDPR – General Data Protection Regulation – applies as of the 25 May 2018 across the EU, to information concerning any citizen of the EU. It replaces the EU Data protection directive 1995 and is designed to be ‘technology neutral’. This means it applies to both paper and electronic records, and any other futuristic ways we have of storing data. GDPR does NOT apply in Switzerland and data privacy remains the responsibility of employers, as in Switzerland nannies are not independent contracters! However, both The Swiss Nanny Association ( SNA) and the British Association of Professional Nannies ( BAPN) believe it is better to be safe and hold personal information securely, particularly when it concerns people as vulnerable as children.

SNA will follow the BAPN to implement the following as industry standards:

  • The information remains the property and responsibility of your employer. They should set out what data you hold, why you have it and what you may do with it in your contract.

  • You may have certain separate permission letters or forms relating to medical acts or transport, for example. These are not yours to keep, they are related to your employment. When you leave a position you no longer need them and they can be destroyed. Any permission forms should simply reinforce what is in your contract.

  • You probably take photographs of your charges for your employers. You may ask permission to use these as observations for externally assessed work. The course provider should have their own policy on how the data is handled, but you should also be careful to anonymise your charges in written work.

  • Your insurance company may require you to keep copies of any accident records in case a claim is made in the future. These forms must be stored securely either on paper e.g. in a locked filing cabinet or electronically as scans in a password protected file.

Suggested contract clauses Under duties:

  • Administer medication and first aid as required

  • Take the children to pre-arranged appointments with healthcare professionals

  • Undertake regular observations and if necessary record development

  • The consent form for medication, first aid and consulting a medical professional is then an extension of this clause. This means you don’t need to take your contract with you to visit the doctor.

Under privacy:

  • The Employee is permitted to take photos of the children for their own personal records and for the Employers’ use. The Employee must have the permission of the Employer if they at any time need to show photos of the children for training etc. The Employee is prohibited from distributing images of the children without the Employer’s specific prior consent including via social media networks.

  • The Employee agrees to delete all contact numbers, images and personal information acquired during the course of their employment relating to the Employer’s family or any friends or relatives stored on mobile or electronic devices and to hand over paper records unless explicit, written consent is given at the end of the employment period.

What data do you hold? It is is a good idea to construct a data register. This may include:

• Children’s and parents’ names • Children’s dates of birth • Parents’ contact details • Parents’ employment/professional details • Contact details for other family members • Physical and mental health information • Contact details for other care providers (school, nursery, GP, dentist...) • Contact details for friends of the children • Photographs and video recordings of children, and possibly their friends • Learning journals, records of development and observations • Consent forms • Accident records

Why do you have it? Is it necessary for you to hold it or could it be held by your employers and accessed by you? You should only be holding information which is necessary for you to do your job. Some of this information may not need to be held by you (i.e. stored on your phone or computer).

How long do you have to hold it for? Most of this information is only needed as long as you are employed by the family. At the end of your employment you can suggest to your employer that they sign the following release: I [ employers name] hereby authorise [ employee name] to retain for his/her personal use: • My address • My telephone number • My email address • The dates of my children’s birthdays • Photographs of my children taken by him/her during his/her employment I also agree to provide a written reference with my contact details for use in future employment services which may be distributed to introduction or employment agencies and future employers.

Your employer should also be informing you what data they hold about you!

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Important note: the information below is given for information purposes based on our current knowledge.

Status as of March 30, 2020

The employee is afraid to come to work because he/she is a person at risk

The people “particularly at risk” within the meaning of the COVID-19 Ordinance must stay at home and avoid groups of people:

  • people aged 65 and over

  • people who suffer in particular from the following pathologies: hypertension,diabetes, cardiovascular disease, immune weakness due to disease or therapy, cancer.

Vulnerable employees have to fulfil their professional obligations at home.

If this is not possible, as is most cases for domestic workers, the employer will grant them leave while continuing to pay their wages.

Employees must communicate their situation as a vulnerable person to their employer.

The employer can request a medical certificate.

The employee wishes to work but the employer does not need him/her and asks her not to come

The employer can ask the employee to stay at home by temporarily relieving him of his obligation to work. In this case, the employer must continue to pay the salary in full.

The employee made overtime in the past and now the employer wants him/her to take these hours

The employer cannot compel the employee to compensate for overtime, this must be the subject of an agreement (article 321c al. 2 CO). The employee can therefore refuse this and offer to work.

Can a permanent contract (CDI) be terminated immediately in connection with covid-19?

The indefinite contract may be terminated by each of the parties, except during the so-called protection periods (illness, accident, pregnancy). During the trial time, each of the parties may terminate the employment contract at any time subject to a notice period of seven days. After the trial time, the notice period to employee is one month during the first year of service, two months from the second to the ninth year of service, three months after nine year- Notice period is always at the end of a month.

Dismissal with immediate effect is only possible for just reasons (serious misconduct): therefore, the epidemic and its health and/or financial impact cannot in any case be a reason for dismissal with immediate effect.

Can a CDD (fixed-term contract) be terminated in connection with covid-19?

The fixed-term contract ends automatically on the agreed date. Prior to its expiration, the contract cannot be terminated by ordinary termination.

The exception is, if the written contract has a clause that the parties can terminate the contract before the end date (subject to the deadlines of a CDI).

What if the employee is sick (covid-19 or any other illness)?

Provided that the employment relationship has lasted for more than three months, the normal salary is paid to the employee, and this for a limited time ( cf. Berne scale).

Compensation for lost benefits in kind must also be paid (e.g. food, accommodation - according to AVS standards). It is the employee's responsibility to provide proof of a work incapacity by providing the employer with a medical certificate of incapacity for work.

Since March 20, 2020, due to the covid-19 health crisis, an absence for health reasons need not be justified by the employee with a medical certificate before the 10th day of absence.

What if the employee is ordered to be quarantined by a doctor?

An extraordinary benefit during the Covid-19 health crisis is allocated to people under quarantine ordered by a doctor, namely a loss of earnings allowance in case. The number of daily allowances is limited to 10 days for these people.

In order to avoid any health risks, the employer must take all the necessary measures to ensure that the employee is sufficiently protected from contamination in the workplace, in accordance with the guidelines of the Federal Office for Public Health. If adequate and proportionate measures have been taken and there is still too high a risk (a risk which must be objective), it could be considered that the employee does not go to her place of work and is nevertheless paid.

What if the employee refuses to go to work by public transport?

Avoiding public transport is a simple recommendation from the authorities and is therefore not binding on the employer.

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Throughout the outbreak of the Coronavirus – Covid 19 in Switzerland information and concerns regarding the reality some domestic workers are now living has been brought to our attention. SNA would like to voice these concerns representing nannies, au pairs and housekeepers.

A group of volunteers from SNA has been interviewing domestic workers all across Switzerland about their working conditions. Nannies have talked to us about their fears and anxieties in the workplace.

They have also talked to us about infractions committed by their employers, like: being asked to keep on working with infected family members, crossing the border illegally, breaking a contract without notice or not wanting to pay.

At this moment in time four major issues have been observed:

1. Declared workers have no access to the RHT

Some families have decided to quarantine and ask their domestic staff to do the same and have communicated that this leave is to be considered as paid leave. However, this situation will be fine, for most, until April but is not sustainable after for a longer period of time. Some families or its members are losing their jobs. They would love to keep their domestic staff on board with them but cannot support their salary without work for an indeterminate time.

  • Switzerland ratified the ILO Convention where it is very clear that domestic workers have access to the same conditions as all other employees, though it is extremely clear that domestic workers rights have been forgotten throughout this pandemic.

  • It is unfair on employers that if they want to protect their family and their domestic staff nothing is facilitated for them and in actual fact the burden is on them.

  • The Swiss Nanny Association promotes legal employment advocating the fact that everybody has a right to legal employment and social protection. Families who legally employ domestic staff pay social insurance contributions, like all other employers for different lines of work. However, at this moment, and through the adversity of a pandemic, domestic staff are completely ignored and are not covered regarding any social benefits other professionals have access to.

“ One of my employers did a demand for RHT, but they told him I have no right to it because I am a domestic worker. Another employer believes that they don’t have to pay me at all because I am not working, this way I loose the majority of my income!”

2. No work, no pay

In the case of declared domestic staff the employer may decide that, due to the Covid 19, they don t want the employee to come into work but also decide that the employee will no longer be paid. We see that families twist this so it looks like the employee is refusing to work. In the case of non-declared domestic staff there is no work contract in place thus the employee is left with nothing but to fend for themselves. Within this second point and to add to the situation some domestic workers face:

  • Reduced work schedule equals reduced pay (both parents are at home).

  • Reduced working hours during the pandemic but these hours must be made up in the future (Banking hours).

  • Domestic workers are forced to take days off as holiday

“ I was kicked out of my Live in job without any time to find another place to live! I was called by the secretary of my boss to get my salary and he then announced that from that day I couldn’t live with them anymore” “ None of my employers are paying, not even the ones I have been working for over 10 years“

3. Working conditions – changes to contracts

To adapt to their needs many families are expecting much more of their domestic staff without regard to the fact that rules, contract and work agreement need to be respected.

  • Longer working schedules.

  • Cancelling planned holiday.

  • Live out employees are asked to live in.

  • Domestic workers are being fired by text messages without respecting the legal notice period.

“ My employers asked me to cross the border from France illegally, when I refused they told me I have to make up all the hours once the Pandemic is over”

4. Not respecting the workplace recommendations

It is important to mention that a domestic workers workplace is in a home setting but also needs to abide by rules and recommendations.

  • There is no clear communication or interpretation of whether a private residence is regulated by the workplace recommendations or not.

  • We believe it is not possible to obey to the required safety recommendations in our job, unless the family is totally aware of them and provides the necessary protection.

  • We often hear about employers organizing gatherings and/or asking their domestic staff to break the rules.

“ A family member that lives in the house I work is tested positive, they still ask me to come to work, if I don’t come to work they wont pay me but I am afraid to get infected”

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