SWITZERLAND Law and Practice Contributed by: Philippe Nordmann, Irène Suter-Sieber, Jonas Knechtli and Gustaf Heintz, Walder Wyss
Any dismissal due to such status or in violation of an employer’s increased duty of care would be consid - ered abusive (see 8.1 Wrongful Dismissal ). 8. Disputes 8.1 Wrongful Dismissal Grounds for Wrongful (“Abusive”) Termination Claims Despite the principle of freedom of termination, ter - minations can be considered abusive when issued in bad faith (see 7.1 Grounds for Termination ). This general criterion is specified in a non-exhaustive legal enumeration of circumstances. A notice of termination is considered abusive when it is given by either party in the following circumstances: • on account of an attribute pertaining to the person of the other party, unless such attribute relates to the employment or substantially impairs co-opera - tion within the business; • because the other party exercises a constitutional right, unless the exercise of such right violates an obligation arising from the employment or substan - tially impairs co-operation within the business; • solely in order to prevent claims under the employ - ment from accruing to the other party; • because the other party asserts claims under the employment in good faith; or • because the other party is performing a non-volun - tary legal obligation. A notice of termination given by the employer is con - sidered abusive when it is given in the following cir - cumstances: • because the employee is or is not a member of a trade union or because they carry out trade union activities in a lawful manner; • while the employee is an elected employee repre - sentative on the works council or on a body linked to the business and the employer cannot cite just cause to terminate the employment; or • in the context of collective redundancies, without having consulted the works council or (if there is none) the employees.
However, case law has developed further cases in which a termination may be deemed abusive. Consequences of Abusive Terminations Even an abusive termination remains valid and there is, in principle, no claim to continued employment (see 8.2 Anti-Discrimination for an exception to this prin - ciple). However, the terminated party is entitled to a compensation payment of up to six monthly salaries (two monthly salaries in connection with collective redundancies – see 7.1 Grounds for Termination ). The exact amount of compensation is to be determined considering all circumstances of the particular case (such as the seriousness of the terminating party’s misconduct). Procedural Requirements In order to avoid the forfeiture of such compensation claim, the party receiving notice must submit a written objection against the termination before the expiry of the notice period, and it must bring the claim before the courts within 180 days of the end of the employ - ment. 8.2 Anti-Discrimination General Principles Anti-discrimination issues are typically raised in con - nection with abusive termination claims (see 8.1 Wrongful Dismissal ). In general, it is the terminated party that must prove the existence of the circum - stances leading to the abusiveness of the termination. Specific Provisions Regarding Gender Discrimination Federal Act on Gender Equality The Federal Act on Gender Equality (GEA) provides for specific protection against both direct and indirect discrimination on the basis of gender in all areas of working life, not least by providing for a special burden of proof and additional damages/relief. Burden of proof The GEA provides for a lowered burden of proof for the employee. In connection with the allocation of duties, the setting of work conditions, pay, basic and continu - ing education and training, promotion and dismissal (but not in connection with a discriminatory refusal of employment and sexual harassment), discrimination
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