Combining periods of protection under employment law

Combining periods of protection under employment law

"Like the employee of the lady who wrote to you last week, I was ill for a long time and, after waiting a month, my employer gave me notice. Once I'd recovered, I came back to serve my notice, but now I've had a sports accident! Am I entitled to an extension of my notice period?

Tristan, Geneva

The employer may not terminate the contract of an employee who is totally or partially unable to work for 30 days during the first year, 90 days from the second to the fifth year and 180 days from the sixth year of service (art. 336c CO). At the end of this period of protection, the employer is entitled to give notice of termination in accordance with the statutory or contractual provisions.

If, once recovered, the employee returns to work and then suffers another incapacity due to illness or accident, he or she will be entitled to a new period of protection against possible dismissal. This is because incapacity for work arising from different causes is not cumulative, so that a new period of protection begins to run in each case. Note that when the same cause (same illness, same accident) leads to various phases of incapacity for work, such relapses do not trigger a new period of protection.

If the employer serves notice of termination but the employee receives it while already within a new period of protection, the notice will simply be null and void and will have no effect. If, on the other hand, the employee becomes unable to work again after having received the notice of termination of his contract, his notice period will be suspended until the expiry of the new protection period. Note that if the contractual deadline thus extended falls on a date other than the end of a month, the term of the contract will be extended to the end of that month.

It should also be pointed out that being in a period of protection against leave does not necessarily mean that the employee is guaranteed to receive his or her salary. This will depend on whether the employee has loss of earnings insurance, as such cover is generally valid for two years. If this is not the case, the guarantee of salary entitlement in the event of inability to work is shorter than the period of protection against dismissal! For example, the employer is only obliged to pay wages for 3 weeks during the first year and only 1 month during the second.