Social Security Law

Replacement of Social Assistance (SH) with Supplementary Benefits (EL)

The social services office imposed a 10% asset waiver on the social assistance recipient and counted this amount as (hypothetical) income. “Waiver of assets” means that the client relinquished assets that he should not have. For example, he should not have sold a Lamborghini without explaining what he intended to do with the proceeds. The social welfare office assumed that the recipient had sold an expensive car approximately 15 years ago and had not disclosed what he ultimately did with the money.

We were able to prove to the social welfare office that its calculation at that time (about 15 years ago) was incorrect, so the recipient was removed from the social assistance program and began receiving supplemental benefits to (his AHV pension). However, proof could only be provided through supporting documents. Specifically, evidence had to be provided that the recipient had not sold any assets, but rather did not own any such assets at all and therefore could not dispose of anything. However, the adjustment could only be made going forward, as the social welfare office’s legal department would only concede on the basis of supporting documents, and a retroactive adjustment was no longer possible. We were grateful that, after 15 years, the relevant supporting documents could still be obtained.

Conversion of a supplementary IV pension from the 2nd pillar into a retirement pension upon reaching the reference age (65 years)

The state IV pension becomes a retirement pension. That is the law. In the case of a supplementary IV pension from a second-pillar pension fund, an IV pension can be converted into a (lower) retirement pension if the pension fund’s regulations provide for this and the minimum BVG pension is maintained. However, this is contingent upon the regulations being communicated to the insured person following any amendments. In this specific case, that did not happen, so the 70% pension based on earnings indexed to inflation remained in effect. A pension fund is then required to retain the files until the insured person’s death.

Recovery of Daily Sickness Benefits

An insurance company sought to recover daily sickness benefits it had paid. It filed a lawsuit against both the employee (as the beneficiary) and the employer (whom I represented). The Federal Supreme Court had briefly addressed this issue in earlier rulings, and the right to sue the employer was upheld. The legal dispute ended with a settlement in which all parties made concessions. The employee waived future claims under the daily sickness benefit insurance, and the defendants waived their right to legal costs, although the employee benefited from having legal expenses insurance. The case file was extensive, totaling more than 150 pages with numerous supporting documents.

 

Labor Law

Termination of a Pregnant Employee

The termination without notice of a pregnant employee is not a void termination, but rather a voidable one, and it must be determined whether the termination was justified or not.

The employer must offer a pregnant employee who performs arduous or hazardous work an equivalent alternative position free of risks. If the employer cannot offer such an equivalent alternative position, the employee is not required to perform the work and is entitled to 80 percent of her wages (Art. 35 and Art. 35b of the Swiss Labor Act).

 

Liability Law

Payments resulting from a car accident involving an uninsured party

The NFG National Guarantee Fund Switzerland was required to step in as the insurer. The accident occurred in 2012. After several changes of attorneys, the case was settled out of court in 2023 for a six-figure sum. Multiple attempts had to be made, and previous attorneys either resigned from the cases or had their mandates revoked because the case was very time-consuming and complex, and the extent of the damages was allegedly not clear enough; furthermore, the NGF, represented by Basler Insurance, initially wanted to wait for the disability insurance (IV) reports to determine whether a pension would be available. The victims were self-employed individuals with irregular incomes and employment histories who worked part-time. The clients had legal expense insurance, but the previous attorneys were unable to reach a resolution, and by the time the last attorney took the case, the money from the legal expense insurance was coming in only “in small increments.” The clients were nearly destitute.