Music and the law: Can a school music teacher teach privately?
An example inspired by the practice of the Swiss Society for Medical Pedagogy's legal counsel. Yvette Kovacs, Doctor of Law, SSPM legal advisor and attorney-at-law in Zurich, answers questions from SSPM members.
Question from an SSPM member
Can a school music teacher teach privately?
Reply from Ms Kovacs:
The principle of economic freedom enshrined in the Federal Constitution also applies to music teachers. It may, however, be subject to legal restrictions. These differ according to whether the school where the teacher is employed is regulated by public law or organized under private law. Schools governed by public law are subject to the relevant cantonal and communal laws and ordinances. Given that in Switzerland, these may give rise to completely different regulations from one community to another, it is not possible to give a general answer here for this type of establishment.
In private schools, the conditions of employment are as follows:
In principle, contractual regulations, including the regulations incorporated therein, take precedence over non-binding legal regulations. Consequently, the first step is to analyze the music teacher's contract and regulations. In the absence of such regulations, the provisions of the Swiss Code of Obligations (CO) apply. Art. 321a of the CO stipulates that the employee must perform the work entrusted to him with care, and safeguard the legitimate interests of the employer. During the term of the contract, the employee must not perform paid work for a third party insofar as this violates his duty of loyalty and, in particular, competes with the employer.
Legal commentary and practice lead to the following conclusions: this prohibition does not apply to all paid work for third parties, but only to that which violates the duty of loyalty. The most important example is competition with the employer, i.e. offering similar services that cover the same customer needs and are at least partly aimed at the same clientele. If an employer agrees to enter into a part-time contract, and therefore expects the employee to work with the same clientele for competitors, he is tacitly consenting to a restriction of the duty of loyalty. However, practice in this area is very restrictive, and this type of competition is only accepted if any significant conflict of interest can be ruled out. A breach of the duty of loyalty, depending on its seriousness, may give rise to formal notice or ordinary, or even immediate, termination. In addition, damages may be awarded, leading to the return of all earnings from competitive activities.
In practical terms, this legal situation leads to the following answer:
A music teacher employed full-time (100%) in a private school may under no circumstances teach privately at the same time. If the teacher is employed on a part-time basis, it can be assumed that the employer knows, or should know, that the teacher will also have to work elsewhere to supplement his or her income, especially as the rate of employment is reduced. In principle, this is permissible.
However, the duty of fidelity prohibits him/her from performing work that could compete with the employer, such as offering private lessons to the same clientele (e.g. giving private lessons to adults while holding a position as a music teacher whose lessons are also taken by adults). For this reason, I strongly recommend that anyone wishing to give private lessons while working in a music school should discuss the matter with the school's director, and conclude a written agreement stating that the director has been informed of the private teaching activity and has approved it. The situation is different if the person is employed at a music school attended exclusively by children and young people, and his or her private lessons are offered only to adults. In this case, the private teaching activity does not compete with that of the music school, and is therefore permitted. It goes without saying that private teaching must take place on private premises, i.e. school premises must never be used for this purpose without special authorization from the school (e.g. rental agreement). Similarly, it is forbidden to advertise one's own private teaching activities in the school without authorization from the school management.
An example inspired by the practice of the Swiss Society for Medical Pedagogy's legal counsel. Yvette Kovacs, Doctor of Law, SSPM legal advisor and attorney-at-law in Zurich, answers questions from SSPM members.
Question from an SSPM member
Can a school music teacher teach privately?
Reply from Ms Kovacs:
The principle of economic freedom enshrined in the Federal Constitution also applies to music teachers. It may, however, be subject to legal restrictions. These differ according to whether the school where the teacher is employed is regulated by public law or organized under private law. Schools governed by public law are subject to the relevant cantonal and communal laws and ordinances. Given that in Switzerland, these may give rise to completely different regulations from one community to another, it is not possible to give a general answer here for this type of establishment.
In private schools, the conditions of employment are as follows:
In principle, contractual regulations, including the regulations incorporated therein, take precedence over non-binding legal regulations. Consequently, the first step is to analyze the music teacher's contract and regulations. In the absence of such regulations, the provisions of the Swiss Code of Obligations (CO) apply. Art. 321a of the CO stipulates that the employee must perform the work entrusted to him with care, and safeguard the legitimate interests of the employer. During the term of the contract, the employee must not perform paid work for a third party insofar as this violates his duty of loyalty and, in particular, competes with the employer.
Legal commentary and practice lead to the following conclusions: this prohibition does not apply to all paid work for third parties, but only to that which violates the duty of loyalty. The most important example is competition with the employer, i.e. offering similar services that cover the same customer needs and are at least partly aimed at the same clientele. If an employer agrees to enter into a part-time contract, and therefore expects the employee to work with the same clientele for competitors, he is tacitly consenting to a restriction of the duty of loyalty. However, practice in this area is very restrictive, and this type of competition is only accepted if any significant conflict of interest can be ruled out. A breach of the duty of loyalty, depending on its seriousness, may give rise to formal notice or ordinary, or even immediate, termination. In addition, damages may be awarded, leading to the return of all earnings from competitive activities.
In practical terms, this legal situation leads to the following answer:
A music teacher employed full-time (100%) in a private school may under no circumstances teach privately at the same time. If the teacher is employed on a part-time basis, it can be assumed that the employer knows, or should know, that the teacher will also have to work elsewhere to supplement his or her income, especially as the rate of employment is reduced. In principle, this is permissible.
However, the duty of fidelity prohibits him/her from performing work that could compete with the employer, such as offering private lessons to the same clientele (e.g. giving private lessons to adults while holding a position as a music teacher whose lessons are also taken by adults). For this reason, I strongly recommend that anyone wishing to give private lessons while working in a music school should discuss the matter with the school's director, and conclude a written agreement stating that the director has been informed of the private teaching activity and has approved it. The situation is different if the person is employed at a music school attended exclusively by children and young people, and his or her private lessons are offered only to adults. In this case, the private teaching activity does not compete with that of the music school, and is therefore permitted. It goes without saying that private teaching must take place on private premises, i.e. school premises must never be used for this purpose without special authorization from the school (e.g. rental agreement). Similarly, it is forbidden to advertise one's own private teaching activities in the school without authorization from the school management.
