SWITZERLAND Law and Practice Contributed by: Philippe Nordmann, Irène Suter-Sieber, Jonas Knechtli and Gustaf Heintz, Walder Wyss
Consequences of Non-Compliance As non-compliance with the “actual settlement” or reflection period requirements may lead to the entire termination agreement being declared null and void, strictly adhering to these requirements is of the utmost importance in order to actually obtain the envisaged legal certainty. 7.5 Protected Categories of Employee Temporal and Substantive Protection Against Dismissal Notwithstanding the governing principle of freedom of termination, Swiss employment law provides for both temporal and substantive protection against dismiss - al. In this context, certain categories of employees benefit from stronger protection than others. Categories Benefiting From Specific Temporal Protection In particular, the following categories of employees benefit from specific temporal protection against dis - missal (after completion of the probation period, if any). • Employees performing Swiss compulsory military service, civil defence service or alternative civilian service – Protection against dismissal during such performance and potentially during a certain period before and after. • Employees being (partially) incapacitated for work due to illness or accident through no fault – Protec - tion against dismissal during such incapacitation, but at most for 30, 90 or 180 days (depending on the employee’s years of service). • Pregnant employees and new mothers – Protection against dismissal during the pregnancy and for 16 weeks after delivery (possibly for a longer duration in case of a hospitalisation of the newborn or the death of the other parent). Other than in case of the death of the new mother, employees entitled to parental leave do not benefit from a comparable temporal protection against dismissal, however, and may only benefit from an extension of the notice period corresponding to the not yet taken days of parental leave (see 1.5 Other Employment Terms ). • Parents of a minor child with serious health impair - ments – Protection against dismissal as long as the
entitlement to care leave exists, but no longer than six months from receipt of the first daily care allow - ance (see 1.5 Other Employment Terms ). Generally, each of these circumstances triggers sepa - rate “proscribed periods”, although an exception to this principle applies for incapacities for work arising from one and the same medical condition (relapses in particular). Any notice of termination given during such proscribed periods is considered void and must be re-issued after the expiry of the proscribed period in order to become effective. Where notice of termination has been given prior to the commencement of a proscribed period, said notice remains effective. In this case, however, the notice period is temporarily suspended and does not resume until the expiry of the proscribed period. Finally, the prolonged employment is further extended until the next usual end date (ie, generally the next end-of-month, unless agreed otherwise) to ensure consistency with the usual job change dates. Categories Benefiting From Specific Substantive Protection The following categories of employees benefit from specific substantive protection against dismissal. • Employees performing non-voluntary legal obliga- tions, members of a trade union and employees performing trade union activities (in a lawful man - ner) and members of the works council or elected members of a body linked to the business – Protec - tion against dismissal due to such status. • Older employees with many years of service – This category may, under certain circumstances (in particular, the employee’s position), benefit from an increased employer’s duty of care so that the employer must, as a matter of principle, timely inform and consult the employee regarding an intended dismissal, grant the employee a last chance and also evaluate possibilities to continue the employment before effectively giving notice.
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