Notice periods: statutory regulations for the termination of employment relationships

If an employee wishes to resign or an employer wishes to dismiss an employee, the period between the notice of termination and the effective end of the employment relationship is the notice period. The length of this period is stipulated by law in the Swiss Code of Obligations (CO). The notice periods for employers and employees are always the same under Swiss law. If different notice periods have been agreed in an agreement or in the employment contract, the longer period applies to both parties.

In general, no special reason is required for termination in Switzerland. Both an employer and an employee may give notice at any time in compliance with the applicable notice periods. However, the other party may request a written declaration from the party giving notice of termination (Article 335, paragraph 2 CO). With a few exceptions, most notices of termination must be given at the end of the month.

Due to their limited duration from the outset, the termination of fixed-term employment contracts does not generally require any special notice of termination. If the employment relationship is continued by mutual agreement after the predetermined period has expired, an unlimited employment relationship is created.

After ten years, a longer fixed-term employment relationship can be terminated with six months' notice (Article 334 CO). Termination before the end of the fixed-term employment relationship is unusual, but is certainly possible, for example if a corresponding clause has been included in the employment contract. Termination without notice for good cause in accordance with Article 337 CO is also permitted in the context of fixed-term employment relationships.

The probationary period is generally understood to be the first month of a new employment relationship. This can be extended to a maximum of three months by written agreement or in the employment contract. During this period, there is a notice period of seven days and notice of termination can be given on any day (Article 335b CO). It can be given by either the employee or the employer.

The length of the notice period depends primarily on how long the employment relationship has existed at the time of termination. The longer an employee has worked for a company, the longer the statutory notice period. The notice periods are set out in the law under Article 335c, paragraph 1 CO as follows:

• in the first year of service: one month's notice period
• from the second to the ninth year of service: two months' notice
•  from the tenth year of service: three months' notice

Notice of termination must always be given at the end of the month. If notice is given at the beginning or in the middle of the month, it is valid but does not take effect until the end of the month in question.

Example: An employer gives notice to an employee who has been with the company for three years. The notice of termination is given on 15 April. In this case, the notice period is two months, but the term does not begin until the end of the month. The employment relationship therefore ends on 31 June.

Can the statutory notice periods be changed?

The notice periods stipulated by law can be changed by written agreement, a standard agreement or a collective labour agreement. The notice period may only be reduced to less than one month in the first year of service and only by means of a collective labour agreement (Article 335c, paragraph 3 CO). Furthermore, notice periods are mandatory provisions that may not be changed to the detriment of employees (Article 362 CO). For this reason, it is only permissible to stipulate longer notice periods in agreements or employment contracts, but not shorter ones.

In practice, many companies stipulate longer notice periods than those required by law. Periods of up to six months are quite common. In many companies, long-serving employees or people in management positions in particular benefit from longer notice periods than would be required by law.

In the event of termination without notice for good cause, no notice period must be observed. The employment relationship is deemed to be terminated immediately after the notice of termination has been given. Both contracting parties can terminate the employment contract in this way - if desired, this must be justified in writing by the terminating party (Article 337 CO).

For this type of termination, however, there must be compelling reasons that make further cooperation unreasonable for the terminating party. For example, an employer can dismiss an employee for gross misconduct in the workplace or a breach of work duties. For employees, this could include reasons such as sexual assault or failure to pay wages. In individual cases, a court decides whether the reasons for termination without notice are appropriate and whether the dismissal is valid. If this is not the case, compensation claims may arise.

Notice periods for apprentices

An apprenticeship contract can be terminated during the probationary period in the same way as an open-ended contract during the probationary period, namely with seven days' notice on any day of the week (Article 346, paragraph 1 CO). After the end of the probationary period, the employment relationship can only be terminated by mutual agreement. Apprenticeships can also be terminated without notice for good cause without a notice period in accordance with Article 346, paragraph 2 CO. These reasons are permissible:

• If the person teaching does not have the necessary qualities to impart the appropriate knowledge to the apprentice.
• If the trainee does not have the mental or health requirements needed to complete the training.
• If the training relationship can only be completed under changed conditions or cannot be completed at all.

In which situations is the notice period extended?

In certain cases, notice periods may have to be extended. This is often due to unforeseen circumstances, for example if the employee is unable to work due to an accident or illness. In the following cases, the regular notice period is extended:

Incapacity for work

If an employee is prevented from performing their work for a certain period of time and the reasons for this are not their own fault, a blocking period arises. This is the case, for example, in the event of incapacity to work following an accident or illness. The person concerned may not be dismissed by the employer during this period. The blocking period is

• One-year employment relationships: 30 days
• Employment relationships between two and five years: 90 days
• Employment relationships of six years or longer: 180 days

If the notice of termination was given before the incapacity occurred, the notice period is extended accordingly. The blocking period is added to the actual notice period (Article 336c CO). However, the blocking period only applies after the end of the probationary period.

Remaining paternity leave

If a person is dismissed while he is still entitled to paternity leave in accordance with Article 329g CO, the notice period is extended. In principle, fathers are entitled to two weeks' leave, which must be used within six months of the birth of the child. According to Article 335c, paragraph 3 CO, in the event of termination, the days of leave not yet taken at this time are added to the notice period.

Pregnancy

There is a blocking period for pregnant employees. They may not be dismissed during the entire pregnancy and up to 16 weeks after the birth (Article 336c, paragraph 1 CO). If notice of termination has been given and the pregnancy was not yet known at this time, the notice of termination is invalid. If the notice of termination was given before the pregnancy and the employee concerned becomes pregnant during the notice period, the blocking period applies. The notice period is interrupted and only continued after the end of the qualifying period - i.e. 16 weeks after the birth (Article 336c, paragraph 2 CO). During this period, however, the pregnant employee is free to terminate the employment relationship of her own accord.

Notice period and outstanding holiday days

If an employee has outstanding holiday days after the notice of termination has been given, these may be used before the notice of termination is given. According to Article 329d CO, holidays may not be compensated in cash but must actually be taken as holiday days. This principle generally also applies during the notice period. In operational emergencies, however, the employer can insist on not granting holidays, but paying out the holidays instead. In individual cases, it depends on what the employer and employee prefer. If both parties agree, both the payment and the use of holiday days during the notice period are legitimate. If a legal dispute arises, the number of holiday days and the length of the notice period are often compared. If there are a lot of unused holiday days with a short notice period, a payout usually makes sense.

Time off during the notice period

This option is often used in practice, but is not explicitly mentioned in the law. In the case of a leave of absence, ordinary notice of termination is given in compliance with the applicable notice period, but the employee is released from his or her obligation to work from one day to the next. The salary continues to be paid until the end of the notice period without the employee having to attend work. Employers usually link a leave of absence to conditions - for example, holiday and holiday entitlements usually expire with the leave of absence. If in doubt, seek expert advice from a labour law attorney in order to know your rights exactly and to be able to assert them.