Retaliatory dismissal: When is a dismissal considered abusive in Switzerland?

The Swiss Code of Obligations (CO) stipulates when a dismissal is considered unfair in Switzerland and what sanctions and procedures are provided for accordingly.

While freedom of dismissal generally applies in Switzerland, there are nevertheless a number of exceptions to protect employees from unfair dismissal, which are set out in Articles 336 et seq. of the CO. These articles list eight main cases of unfair dismissal, although this list does not exclude other reasons. Similarly serious grounds for dismissal can also be recognised by the legislator as unfair dismissal.

If an employee is dismissed because they have made a claim in connection with their employment contract, this is commonly referred to as retaliatory dismissal. For example, an employee may complain to their line manager about the length of their working hours, which they believe is in breach of the terms of their employment contract.

If his claim is the reason for the dismissal, it is considered unlawful. This would be a classic case of retaliatory dismissal. Another example is when an employee asks her employer to take measures to protect her health in the workplace, e.g. to take appropriate measures against passive smoking in the workplace. If she is dismissed as a result of this demand, this can also be regarded as a revenge dismissal.

The dismissal can also be considered abusive if the employee does not have the asserted right but acts in good faith, i.e. in the belief that he or she has the right. For example, if an employee believes that they are entitled to overtime pay, claims it and is dismissed for it, this is an unlawful dismissal for holiday pay.

Conditions for the recognition of a retaliatory dismissal

In order for the dismissal to be recognised as a retaliatory measure, the employee must firstly have asserted claims against the employer.

Secondly, these claims must relate to the employment contract, i.e. to issues such as bonuses, working hours, salary or personal protection. In addition, the employee must assert these claims in good faith, regardless of whether he or she actually has them or not. The employee's presumed good faith is mentioned in Article 336, paragraph 1 CO.

If a dismissal is considered a retaliatory dismissal, it is considered unlawful but is not invalid. This means that the employment contract is usually still terminated despite the unlawfulness of the dismissal. The employee has no right to be reinstated in the company.

If the legislator decides in favour of the dismissed employee, the company can only demand payment of compensation in accordance with Article 336a, paragraph 1 CO. The court determines the amount of this compensation up to a maximum of six months' salary (Art. 336a, paragraph 2 CO). When determining the amount of compensation, the legislator takes several factors into account, such as the severity of the employer's fault, any contributory negligence on the part of the employee, the manner in which the dismissal was pronounced, the duration of the employment relationship, the labour market situation and the severity of the personal injury suffered by the dismissed employee.

Tip: It is up to the dismissed employee to contest the dismissal, assert their rights and report a possible unfair dismissal. An employment lawyer can inform you of your rights and represent you legally in contesting your dismissal.

If the employer considers the dismissal to be justified, the employee concerned must prove that the dismissal was in retaliation. This can be difficult in practice. The dismissed employee can first demand that the employer justify the reason for the dismissal in writing. However, the employer can also invoke other reasons.

It is therefore up to the dismissed employee to prove that it was not these written reasons that led to the dismissal. The legislator is generally accommodating, however, and it is usually sufficient for the employee to prove circumstances that allow the assumption that the dismissal was in retaliation.

In addition to retaliatory dismissal, there are other types of dismissal that are considered unjustified and abusive under the CO. Article 336 CO lists eight cases of unfair dismissal. However, the legislator may also consider similar cases of termination to be abusive that are not listed in the CO. The following is a list of the most important cases of unfair dismissal, in addition to dismissal in retaliation.

Dismissal for personal reasons

A dismissal can be considered abusive under Article 336, paragraph 1a CO if it is based on the personality of the employee or the employer and is not related to the employment relationship or would be detrimental to the company. Such a dismissal is considered abusive and therefore unlawful unless the dismissing party can prove that the characteristic in question has a negative impact on the work or the company.

For example, if an employer decides to dismiss an employee because they are involved in legal proceedings or have a criminal record, this is generally considered unfair dismissal. However, if there is a connection between the nature of the conviction and the work performed by the employee (e.g. working with children and young people), the dismissal may be justified.

Dismissal for exercising a constitutional right

If one party terminates the employment relationship because the other party has exercised a constitutional right, the other party may claim that the termination was abusive under Article 336, paragraph 1b CO. However, this reason for termination is not considered abusive if the exercise of this right violates an obligation under the employment contract or is detrimental to the company. The terminating party must therefore prove that the terminated party has abused their constitutional right.

For example, if an employer dismisses an employee because of his party affiliation, this is a dismissal because of his convictions, to which the employee has a constitutional right. The dismissal is therefore considered abusive.

Dismissal to avoid the assertion of a right

Another case of abusive dismissal is when an employee is dismissed before they can exercise their rights or assert claims (Article 336, paragraph 1c CO). This could be the case, for example, in the event of dismissal if the employee receives a severance payment at a later date.

Termination due to fulfilment of a legal obligation

The employment relationship may also not be terminated because a party has fulfilled a legal obligation that it did not wish to assume of its own accord (Article 336, paragraph 1e CO). For example, an employee who is summoned by a court as a witness cannot go to work. This is not a justifiable reason for dismissal.

Dismissal due to membership of a trade union

According to Article 336, paragraph 2a CO, it is unlawful to dismiss an employee on the grounds of membership or non-membership of a trade union or employee association. The Swiss constitution protects the freedom of trade unions and considers this to be an abusive dismissal.

Dismissal of an elected employee representative

Dismissal is also abusive if the employee works as an elected employee representative on a works council (Article 336, paragraph 2b CO). In this case, it is primarily the employee's capacity as an employee representative and not the activity carried out that protects the employee from dismissal.

Dismissal in the context of an unsolicited collective redundancy

In the case of collective redundancies that have not been discussed with the employee representatives, dismissals are also deemed unjustified in accordance with Article 336, paragraph 2c CO. This is based on Article 335f CO, which stipulates that the employer must consult the employees or their representatives prior to a collective redundancy. If the employer fails to do so, the resulting dismissals are deemed abusive.