Under Swiss employment law, an employee who is incapable of working through no fault of his own benefits from statutory protection against dismissal that is limited in time.
This protection period prohibits the employer from giving notice of termination and suspends the running of a notice period that has already been given.
The statutory duration according to length of service
The period during which the employee is protected against dismissal depends directly on his number of years of service with the company:
- During the probation period: No protection period applies during the probation period; dismissal may validly take place even if the employee is ill.
- After the probation period: Statutory protection amounts to 30 days during the first year of service, rises to 90 days from the second to the fifth year of service, and reaches 180 days from the sixth year of service.
The effects of notice and incapacity straddling two years
The start of this protection has strictly defined legal consequences for the end of the contractual relationship:
- Voidness and suspension of the notice period: Any notice given by the employer during the protection period is void by operation of law; if notice was validly given before the illness, the remaining notice period is immediately suspended for the duration of the incapacity (within the maximum statutory period), then resumes and is extended until the agreed termination date, most often the end of a calendar month.
- Incapacity straddling two years of service: Where an illness begins during one year of service and continues without interruption into the following year of service, which confers a longer protection period (for example between the first and the second year, or between the fifth and the sixth), the longer protection period applies, after deduction of the days of suspension already elapsed during the previous year.
This protection complements the continued payment of salary during illness. Outside this period, the ordinary notice period applies. Illness cannot justify termination with immediate effect either.
Legal sources
Federal legislation:
- Art. 336c CO (cited in particular by BGE 133 III 517;BGE 124 III 474 ; Federal Supreme Court judgment 4A_310/2019 ; Federal Supreme Court judgment 1C_139/2007 ) (duration of the protection against notice of 30, 90 or 180 days, voidness of notice given at an inopportune time, suspension and postponement to the end of the month)
- Art. 362 CO (cited by BGE 133 III 517 ; Federal Administrative Court judgment A-1532/2019 ) (relatively mandatory nature of the protection against dismissal at an inopportune time)
Federal case law:
- BGE 133 III 517 (application of the longer protection period where an illness straddles two separate years of service, and imputation of the protection days already elapsed)
- BGE 124 III 474 (fundamental distinction between the suspension of the notice period and the technical extension to the agreed end of the month)