Protection in the event of dismissal

Protection in the event of dismissal

Article 336c of the Swiss Code of Obligations stipulates that, after the trial period, the employer may not terminate the employment contract during the first 30 days of total or partial incapacity to work as a result of illness or accident of which the employee is not at fault. This period is extended to 90 days from the second to the fifth year of service and to 180 days from the sixth year onwards.

If the notice is given during a period of protection, it is null and void. On the other hand, if the notice of termination is given before such a period of protection and the notice period has not fully expired before the start of the period of protection, the notice of termination is suspended. The notice period will be counted from the end of the period of absence from work or from the day following the period of protection.

It should be noted that the protection periods cannot be invoked in a number of specific situations: when the employment relationship is for a fixed term, when it is the employee who has terminated the employment relationship, in the event of termination during the probationary period or in the event of termination with immediate effect. It should also be noted that during the protection period, entitlement to salary is not guaranteed but will depend in particular on the circumstances that caused the employee to be unable to work and whether or not loss of earnings insurance is in place. In the absence of such cover, a scale known as the "Bernese scale" will apply and salary will only be paid for a period depending on the length of the employment relationship, which may be shorter than the period during which the employer cannot terminate the contract...

It therefore follows that an employee who is ill or has suffered an accident can be dismissed after the period of protection applicable to his situation, even if he has not yet recovered his full capacity for work.