Outsourcing occurs when a company wants to outsource a
single business unit and mandate a third party to provide services
that were previously rendered by its own employees. An example
would be a bank that wants to outsource an internal IT function to
an IT service provider. In addition to economic, technical, fiscal
and contractual issues, this also goes hand in hand with questions
regarding labour law.
1. Problems
Depending on the way it is structured, an outsourcing
transaction can qualify as the transfer of a business unit as
defined in Art. 333 of the Swiss Code of Obligations (SCO) if the
company not only replaces a service that was previously provided
internally by a service bought from an external party, but also
outsources operating resources and employees. If an outsourcing
transaction falls within the scope of application of Art. 333 SCO,
this will have serious consequences for the companies involved in
the transaction as well as the affected employees.
