Termiantion during pregnancy: What you need to know about protection against dismissal

In most cases, pregnant employees may not be dismissed by their employer. This is stipulated in the Swiss Code of Obligations (CO). According to Article 336c CO, an employer may not terminate an employment relationship during the employee's pregnancy or up to 16 weeks after the birth. However, this does not apply to employment relationships before the end of the probationary period.

Any extended maternity leave in accordance with Article 329f CO must also be taken into account. The law provides for regular leave of at least 14 weeks after the birth. However, this is extended if the newborn has to be hospitalised. The blocking period for cancellations is also extended accordingly.

Incidentally, the statutory provisions on the dismissal of pregnant women and maternity leave are among the so-called mandatory provisions under Article 362 CO. They may only be amended if the changes are made in favour of the employee - for example, if this results in a longer qualifying period.

When is a dismissal deemed null and void and when is it postponed?

Depending on the date on which the notice of termination was given, it is either null and void due to pregnancy or takes place at a later date (Article 336c, paragraph 2 CO). If the notice of termination is given during the pregnancy, it is deemed null and void. If the notice of termination was given before the start of the pregnancy, the notice period is interrupted and only continues after the end of the statutory blocking period, i.e. 16 weeks after the birth. The employment relationship is then terminated at the next possible date of ordinary termination, i.e. at the end of a month.

Example: An employee is dismissed two months before the start of her pregnancy. The ordinary notice period is three months. During the pregnancy and up to 16 weeks after the birth, the blocking period applies - the notice period is suspended during this time. Notice of termination therefore takes effect 20 weeks after the birth.

Retroactive protection against dismissal for pregnant women

Some women only find out about their pregnancy when they are already one or even several months pregnant. It is therefore quite possible for an employer to give notice of dismissal while an employee is already pregnant but does not yet know about it. The situation is similar if the employee is aware of the pregnancy but has not yet informed her employer. In either case, protection against dismissal applies from the first day of pregnancy. A dismissal is therefore null and void in both situations described.

Dismissal of pregnant women during the probationary period

The special protection against dismissal under Article 336c CO does not apply during the probationary period. During this period, an employer may dismiss a pregnant employee. The notice period is seven days in accordance with Article 335b CO. The probationary period generally lasts one month and may never be longer than three months.

However, the reason for the dismissal must not be pregnancy - otherwise there may be claims of discrimination and resulting claims for damages. The legal basis for this is the Gender Equality Act (GEA). Article 3 of the GEA specifically states that employees may not be discriminated against in any way on the grounds of pregnancy, including with regard to pay and dismissal.

Pregnant women are generally subject to special protection. According to the Labour Act (ArG), employers must ensure that neither the well-being of the expectant mother nor that of the child is put at risk. However, it should be noted that pregnancy is not equated with illness. As long as there is no medical certificate advising against employment, pregnant women are perfectly capable of working.

Are pregnant women allowed to stay away from work?

Pregnant women may only be employed with their consent. They may leave the workplace at any time by arrangement, even without a medical certificate. After giving birth, there is a ban on working for eight weeks - during this time, mothers may not work even with their consent (Article 35a ArG).

Adapted working conditions

According to Article 35 ArG, working conditions for expectant and new mothers must be organised in such a way that their safety and that of the child is guaranteed. Work that could jeopardise the pregnancy must not be carried out. In this case, the employee should, if possible, be assigned other tasks. There are also certain regulations, such as a ban on night work between 8 p.m. and 6 a.m. for pregnant women from eight weeks before the expected date of birth.

Continued payment of wages during pregnancy

If employees are prevented from performing their work for certain reasons, they are still entitled to continued payment of wages. According to Article 324a, paragraph 3 CO, pregnancy is one such reason. Accordingly, the pregnant employee is entitled to her full salary.

If a pregnant woman can no longer carry out her job because the activities involved would jeopardise her health or that of her child, Article 35, paragraph 3 ArG applies. Accordingly, pregnant and breastfeeding employees are entitled to at least 80% of their usual salary and appropriate compensation for loss of remuneration in kind.

In principle, there are no legal regulations that force pregnant employees to inform their employer of their pregnancy. If the employee wishes to benefit from advantages such as health and safety measures, the employer must of course be informed. However, the protection against dismissal must be observed even if the employer was not aware of the pregnancy at the time of the dismissal.

In some special cases, an employee can also leave an employment relationship during pregnancy or in the postnatal period. The following situations are conceivable:

Termination by the pregnant woman

Pregnant employees may resign at any time during pregnancy and also after the birth. The decision must be their own - they must not be pressurised to do so by a superior. If a pregnant employee resigns, the normal notice period for ordinary dismissal applies. This is normally based on the duration of the employment relationship - the longer an employee has worked for the company, the longer the notice period (Article 335c CO). Current employment contracts often stipulate longer notice periods than those required by law.

Please note: If you want to give notice yourself as a pregnant employee, you should pay attention to the correct timing. This can ultimately have an impact on continued salary payments. Leaving the employment relationship before the birth usually means that the employer does not have to make any maternity payments. It is therefore often advisable to wait until after this period before giving notice.

Termination without notice

Protection against dismissal for pregnant women only applies to ordinary dismissals. If the employee gives cause for termination without notice, this can be given by the employer at any time. According to Article 337 CO, one of the two contracting parties may terminate without notice if they cannot reasonably be expected to continue working together. One reason for this may be, for example, gross and wilful misconduct on the part of the person concerned.

Termination by mutual consent - cancellation agreement

A cancellation agreement is another way of terminating an employment relationship (Article 115 CO). The termination is by mutual consent. In the case of pregnancy, a cancellation agreement is sometimes proposed by employers in order to terminate the employment relationship by mutual agreement. Pregnant women are sometimes pressurised into making hasty decisions that they would not otherwise have made. Employees should definitely be aware of their rights and the pitfalls involved. Cancellation agreements often contain provisions that circumvent protection against dismissal and continued payment of wages. Whether you want to waive these is ultimately your own decision, of course. As an employee, you should also pay attention to the provisions regarding any outstanding holiday and overtime entitlements. These should not simply lapse, but should ideally be paid. If you have any problems, you can always seek the advice of a competent labour law attorney.