Dismissal and pregnancy: the employer's obligations
Dismissal and pregnancy: the employer's obligations
"According to my contract, I was made redundant with three months' notice. What obligations will my employer have if I become pregnant during this period?"
Sam, Geneva
Under Article 336c of the Swiss Code of Obligations (CO), after the probationary period, the employer may not terminate the contract during incapacity for work resulting from illness or accident, or during pregnancy and the sixteen weeks following childbirth. Notice given during one of these periods is null and void. If it was given before, the notice period is suspended and does not continue to run until the end of the legal protection period.
The period of protection begins when you become pregnant, even if you are unaware of your condition. This means that your employer cannot dismiss you if you are pregnant. What's more, if you become pregnant during the notice period, which in your case is three months, the notice period will be suspended for the duration of your pregnancy and for sixteen weeks following the birth.
Under Geneva law, which is more favourable than the recently adopted federal law on maternity insurance, you will receive 80% of your salary during the sixteen weeks after giving birth, while during the three-month leave period (before and after the suspension) you will receive 100% of your salary.
The Federal Court explains that the aim of art. 336c of the Swiss Code of Obligations is always to give employees a full period of leave to look for another job, even in the event of illness or accident or one of the other circumstances provided for by law. However, you must inform your employer of your pregnancy as soon as possible, in principle within two weeks of becoming aware of your condition. If necessary, it will be up to you to prove that you were unaware of your pregnancy at a later date. If you only learn of your pregnancy after the end of the leave period, you will only be able to claim your salary for the period during which you clearly offered your services to the employer.
