Attempted coercion of an employer against employees by threatening to withhold a job reference

Facts

The German nationals Horst and Ella [E.] were employed as anesthesia nurses at Hospital X since the summer of 1978. On February 2, 1979 and February 6, 1979, the then interim surgeon Dr. [G.] sent letters to the couple [E.], calling on them to immediately submit their resignation, as the cooperation was unsatisfactory. He threatened them that otherwise he would not issue them a job reference.

The Cantonal Court of Obwalden convicted Dr. [G.] on May 7, 1980 of an attempted coercion. However, the High Court upheld the appeal on November 18, 1980 and acquitted Dr. [G.] of guilt and punishment.

The Public Prosecutor's Office of Obwalden subsequently filed a nullity appeal with the request to set aside the judgment of the High Court and to remand the case for a new assessment to the lower court.

Considerations

The Federal Supreme Court concluded that Dr. G.'s threat to withhold the job reference constituted a serious disadvantage within the meaning of Art. 181 of the Swiss Criminal Code. Even though the entitlement to a job reference is regulated by law and can be enforced in court, the threat not to issue a reference can make a reasonable person in the position of the affected party compliant.

The High Court had therefore incorrectly interpreted Art. 181 of the Swiss Criminal Code by assuming that the threat to withhold the job…