Dismissal without cause is legal in Switzerland

Dismissal without cause is legal in Switzerland

Is it true that you need a reason to dismiss an employee in France, whereas you don't need a reason to dismiss an employee in Switzerland?

Alex

In Switzerland, the employer does not need to provide any significant reason for dismissing an employee. Both parties to the employment contract are entitled to terminate it for reasons of personal convenience or for economic reasons, including the simple desire to earn more, subject where applicable to the rules on collective redundancies. This does not mean, however, that the employment relationship may be terminated for any reason whatsoever. Article 336 of the Swiss Code of Obligations (CO) protects employees against so-called unfair dismissal. In particular, dismissal is considered to be unfair if it is given for a reason inherent in the personality of the other party, following the exercise of a constitutional right or with the aim of preventing the emergence of legal claims arising from the employment contract. In addition, dismissal may be null and void if it occurs at an inopportune time, for example during pregnancy or sick leave, or at least for a certain length of time depending on the employee's seniority.

As for the hypothesis of immediate termination of the employment relationship for just cause within the meaning of art. 337 CO, it requires that the mutual trust presupposed by the proper performance of the contract be destroyed by the conduct of one of the parties, to the extent that the continuation of the contract can no longer be required.

In France, on the other hand, the Labour Code stipulates that classic redundancy, i.e. for a personal reason (as opposed to economic redundancy), is only possible if it is justified by a real and serious reason (art. L1232-1). This means that the facts must be accurate and verifiable, but also serious enough to make dismissal unavoidable. They do not necessarily have to constitute misconduct within the meaning of French law. For example, professional inadequacy or repeated absences may be sufficient. That said, just as in our country, it is not possible to dismiss someone because they have asserted their rights before the courts or because they are exercising a fundamental freedom, such as the right to strike, so regularly used in our neighbouring countries!

In the event of serious misconduct on the part of an employee, French law provides for the possibility of immediate dismissal without severance pay. Such misconduct occurs in particular when the employee steals or embezzles company funds, as is the case on our side of the border.

For example, the conditions for dismissal in France and Switzerland are not radically different, although in France a justified reason for dismissal is always required, whereas in Switzerland this is not the case.