Music and law: My replacement is taking pupils away from me: what can I do to stop him?

Question from an SSPM member: Working in a music school, I organized a replacement during an unpaid leave of absence. On my return, I found that I had lost many pupils, who are now taking private lessons with my replacement. Is there anything I can do about this?

Reply from Yvette Kovacs: The above is a frequently encountered problem. When a teacher is absent for a certain period of time due to illness, pregnancy or maternity, or takes a sabbatical, a replacement must be or-ganized for his or her pupils, either by the music school or by the teacher himself or herself. In such cases, the students may prefer the substitute and wish to stay with him or her, or may be encouraged by the substitute to come to him or her. The resulting legal situation is not straightforward:
The relationship between music school students and their teacher does not imply any obligation to stay with that teacher. On the contrary, the student may change teacher within the time limits laid down in the contractual regulations in force with the school.
In general, there is no contractual relationship between the teacher and his or her replacement, so it is not forbidden to take over pupils.
The music school and the music teacher on leave are bound by a contract of employment. This contract, however, allows the school to change students, provided that the termination dates and deadlines are respected. This possibility is limited only if the employment contract provides for a guaranteed rate of activity. In this case, the school must ensure that this rate is maintained, and is obliged to pay the salary even if the corresponding students no longer attend classes with the teacher. Unfortunately, this guarantee is rarely found.
-The contractual relationship between the music school and the substitute is also a contract of employment. Pursuant to art. 321 a of the Swiss Code of Obligations (CO), the employee must perform the work entrusted to him with due care and faithfully safeguard the legitimate interests of the employer. It follows that the teacher must not compete with his employer for the duration of the employment relationship. When the employment relationship is nearing its end, however, the employee has the right to prepare an activity in competition with his employer, provided that it does not prejudice the latter's position in the market. The duty of loyalty ends with the termination of the employment contract. However, if a replacement actively seeks to take on music school pupils during the current employment contract, and encourages them to take private lessons with him at the end of the employment relationship, he is in breach of his duty of loyalty and liable to civil or even criminal prosecution. For example, handing out business cards bearing the employee's private address, cell phone number, private e-mail address, etc., constitutes a flagrant breach of the duty of loyalty and is therefore prohibited. In such cases, the replacement customer may be required to pay damages (deduction of earnings from the lessons given) and be condemned for breach of duty. In criminal law, this type of case may be considered unfair competition. Clearly illegal is the case where the substitute teacher encourages students to break their contract, in other words to change teachers and take lessons with him/her without respecting the termination dates or deadlines in force. In this case, Art. 4 let. a of the Swiss Federal Unfair Competition Act (UCA) offers possibilities for action, as this action is considered unfair and is prohibited and liable to criminal prosecution.
The situation is different if the substitute simply informs his students that he will be leaving his post at the end of the semester to set up his own business, without offering his services. This is permitted. The same applies if it is the students who request the services of the replacement and the latter simply agrees to take them on without having actively encouraged them to do so.
It is often difficult to distinguish between the authorized departure of pupils and unlawful incitement to change teachers; and above all there is the practical problem that the employer or the teacher on leave must be able to prove these incitement activities. If there is no written evidence (circulars, etc.), or if students are unable or unwilling to provide testimony, it is often risky to take legal action.
Conclusion: the legal situation often offers little protection against this kind of practice on the part of substitute teachers. That's why I strongly recommend that, before taking leave, the teacher sign a contract with his or her replacement, stipulating that the latter undertakes to ensure that all current pupils remain with the teacher on leave. If any pupils do not wish to remain with the teacher on leave, the replacement teacher should be contractually obliged to pay a clearly-defined lump-sum compensation for each pupil who has changed teachers, irrespective of whether there is evidence of encouragement to change teachers or of fault on the part of the replacement teacher (contractual penalty).