Job interviews and jobs in Switzerland: the questions a recruiter is not allowed to ask

All questions about a current or future pregnancy are prohibited, recalls the Jura-Neuchâtel data protection commissioner in a 2018 opinion. Only exceptions: work that is dangerous or incompatible with pregnancy, prohibited by public law for pregnant women, or a very short engagement for a specific situation. The candidate has no obligation to disclose a pregnancy, confirms the Vaud equality office.

“Are you married?”, “Who looks after your children?”, “Does your spouse work?”: these questions target the family situation, a discrimination criterion expressly cited by art. 3 GEA. If the position requires travel or irregular hours, ask about the constraint, not the family: “The position involves two nights a week away, is that workable for you?”

Health belongs to the intimate sphere. The question is only permitted if a specific condition would make the work impossible or dangerous: ability to carry loads for a handling job, eyesight for a driver. Even then, it is limited to suitability for that position, never the full medical file.

Requesting an extract from the criminal record is “in principle exceptional”, according to the City of Lausanne. It is permitted for a position of trust where an offence would weigh directly on the work, managing assets or cash for example. For a regular activity with minors or vulnerable persons, the employer may request the special extract, which only shows current activity bans.

Prohibited for most positions. Permitted when the position involves handling money or valuables, or financial responsibility: the employer may then ask for an extract from the debt enforcement register, which the candidate obtains themselves from the office.

These questions are only permitted in a “Tendenzbetrieb”, an organisation whose activity rests on these beliefs: a church, a party, a union, a campaigning association. For all other employers, they are unlawful. The Federal Supreme Court allows the employer to ask about union membership after the contract is concluded, solely to apply a collective agreement (ATF 123 III 129).

No link with suitability, so no place in an interview. Mind the nuance: asking about nationality or residence permit is lawful, because the employer must know whether it can hire without authorisation. Asking “where does your name come from” is not.

Degrees, experience, responsibilities, results, languages, tools mastered, reasons for previous departures: this is the heart of the interview, and the City of Lausanne sums up the rule by inviting the employer to limit its questions to the candidate’s education, career and professional prospects.

Possible start date, current notice period, workload, acceptable hours, geographical mobility: these elements are necessary to conclude the contract.

Necessary to know whether hiring is possible without a quota or prior authorisation. Our guide to work permits for EU citizens details the cases.

Lawful, even if the candidate is not obliged to disclose their current salary. On Licorn, expectations are in the profile before the interview; see our job market barometer for orders of magnitude.

These questions become lawful again when a concrete requirement of the position justifies them: physical fitness for strenuous work, good repute for a position of trust, solvency for managing funds. The employer must be able to explain the link, and limit itself to what is necessary.

The Federal Supreme Court allowed the cancellation of a contract because a candidate had kept silent, during the interview, about pending criminal proceedings likely to seriously affect her ability to work (ATF 132 II 161). The candidate must spontaneously report what would prevent them from performing the contract.

For an unlawful question, the candidate may refuse to answer or answer inaccurately without legal consequence: this is the “right to lie” recognised by legal scholarship and adopted by the City of Lausanne for irrelevant criminal records. On pregnancy, the Vaud equality office is explicit: you have the right not to answer truthfully.

The same office advises giving a false answer rather than hiding behind the unlawfulness of the question, because pointing out the illegality may be enough to get the application rejected. A neutral answer such as “nothing in my situation prevents me from holding this position” closes the subject.

Lying about a degree, an experience, a criminal record required for a position of trust or an inability to do the work is deceiving the employer. The employer may invalidate the contract for fraud or fundamental error (arts. 23 and 28 CO), and a dismissal on this ground is not abusive.

The candidate must disclose on their own initiative what would make performance of the contract impossible or seriously compromised: a known incapacity for work, an activity ban, or pending criminal proceedings affecting their ability to work (ATF 132 II 161).

A candidate who believes they were rejected for a discriminatory reason should note the question, the date and the people present as soon as they leave the interview. The Gender Equality Act then gives them a short period to act, see below.

The Data Protection Act requires informing the person when data are collected from third parties (art. 19 DPA). In practice: ask the candidate which references to contact and for their agreement, limit yourself to questions related to the position, and do not contact the current employer without their explicit go-ahead. A former employer who gives inaccurate and defamatory information breaches art. 328 CO for its part.

Looking at a public professional profile, LinkedIn for example, stays within the scope of suitability. Digging through private accounts, holiday photos or political opinions has no link with the position and breaches the DPA’s proportionality principle. The candidate must be informed of searches made about them.

Skills tests, role plays and psychometric tests are permitted if they measure an aptitude required by the position and the candidate is informed. A pre-employment medical examination is only permitted if the position justifies it, and the doctor only passes on the conclusion on fitness to the employer, not the diagnosis.

Ordinary criminal record extract for a position of trust, special extract for an activity with minors or vulnerable persons, debt enforcement extract for financial responsibility: always ordered by the candidate themselves, never by the employer, and only for positions that justify it.

The data of an unsuccessful candidate no longer have a purpose once the position is filled: return or destroy the file, unless the candidate agrees to its being kept for another position. The candidate has a right of access to what you have collected about them (art. 25 DPA), including interview notes.

If the refusal to hire is linked to sex, pregnancy or family situation, the rejected person can only claim compensation from the employer, which will not exceed the amount of three months’ salary (art. 5 paras. 2 and 4 GEA). They cannot demand to be hired.

The person who is not hired and who claims discrimination may require the employer to give written reasons for its decision (art. 8 para. 1 GEA). An offer withdrawn right after a pregnancy is announced is, for the Vaud equality office, strong evidence of discrimination.

The person who wants compensation must bring an action within three months from the time the refusal to hire was communicated, failing which the right lapses (art. 8 para. 2 GEA). At the hiring stage, the easing of the burden of proof in art. 6 GEA does not apply: it is up to the candidate to make the discrimination plausible, hence the importance of the written reasons.

Collecting data unrelated to the position is an unlawful infringement of personality rights (arts. 328 and 328b CO) and a breach of the DPA. The candidate may demand access, rectification or destruction of the data, and claim redress. Breaching certain DPA obligations, such as the duty to inform, is also punishable by a fine.

An interview recounted on social media or a review platform is read by every subsequent candidate. In occupations where candidates are scarce, this is often the highest cost.

Workload, location, remote work, salary, type of contract: the candidate set them before any contact. The recruiter no longer has to guess them through questions about private life.

Skills, experience, requirements of the position: the proposal starts from what is relevant to the job, which is what art. 328b CO requires.

Checking skills, presenting the team, answering the candidate’s questions. Our guide for recruiters explains how to publish your conditions and receive profiles that already match.