Unfair dismissal: When is a dismissal unlawful?

In Swiss labour law, the principle of freedom of termination applies, according to which both the employer and the employee (i.e. the two contracting parties) are free to conclude and terminate an employment contract for an indefinite period at any time in accordance with Article 335, paragraph 1 of the Swiss Code of Obligations (CO). It is therefore possible to terminate an employment relationship for any reason as long as the legally prescribed notice periods and conditions are observed. This legal principle differs considerably from regulations in other European countries, such as France or Germany, where such flexibility is not permitted. One of the conditions for terminating an employment relationship is that the employment relationship may not be terminated for an unlawful reason.

Although the employment relationship can be terminated at any time and for any reason in accordance with the principle of freedom of dismissal, employers must nevertheless be vigilant in the event of dismissal. There are indeed reasons that are considered abusive and make the dismissal of an employee unlawful.

Unlawful grounds for dismissal

Article 336, paragraph 1 CO lists some of these cases of unlawful grounds for dismissal, although this list is not exhaustive. For example, similarly serious grounds for termination can be considered abusive even if they are not listed in the aforementioned article.

Termination for personal reasons

Dismissal for reasons relating to the personality of the employee or employer is considered unlawful in Switzerland in accordance with Article 336, paragraph 1a CO. Reasons relating to the personality of a contractual party may include their age, gender, origin, temperament or sexual orientation. The employer's duty of care (Article 328 CO) also states that the employer must protect and respect the personality of its employee.

Dismissal in retaliation (revenge dismissal)

This common form of abusive dismissal is often referred to as "revenge dismissal". This is a termination because one of the contracting parties has asserted their rights or made claims to their employment contract or working conditions (Article 336, paragraph 1d CO).

This may be the case, for example, if an employee complains to her employer about wage deductions that she considers unacceptable, or if an employee makes a claim for safety at work or another claim in connection with the employment contract.

If the employee is dismissed on the basis of these claims, the dismissal is deemed unlawful. This applies even if the employee does not actually have the rights he or she is relying on, but has acted in good faith. However, it is up to the employee to prove that their dismissal was due to their claims.

Termination to prevent the assertion of a right

A "frustrating dismissal" occurs when an employee is dismissed in order to prevent them from exercising their rights (Article 336, paragraph 1c CO). With the dismissal, the employer wants to prevent the employee's justified claims. This may be the case, for example, if the employer terminates an employee shortly before she would have been entitled to a bonus. If this is the case and the reason for the dismissal is demonstrably precisely to thwart the assertion of the right, then it is an unlawful dismissal.

Termination for exercising a constitutional right

Termination is also deemed unjustified if it is communicated to a party because they have exercised a constitutional right (Article 336, paragraph 1b CO). However, there are nuances here, as constitutional rights cover almost all aspects of professional and private life. The Swiss constitution protects fundamental freedoms such as freedom of expression, religion and association.

For the dismissal to be considered abusive, the exercise of rights in question must not have breached an obligation under the employment contract or caused serious damage to the company. A dismissing employer must also prove that their employee has abused their constitutional right.

Termination due to fulfilment of a legal obligation

A party may also not be dismissed because it has fulfilled one of its legal obligations without intending to do so (Article 336, paragraph 1e CO). This may be the case, for example, if an employee is dismissed because he or she is obliged to perform military, civil defence or civil protection service. Another example would be the dismissal of an employee due to her absence for a court hearing as a witness.

In these cases, the employee's absence is not voluntary but a legal obligation and dismissal in this context is therefore unlawful.

Dismissal of an elected employee representative or due to membership of a trade union organisation

The Swiss constitution protects freedom of association and therefore dismissal for membership or non-membership of a trade union is grounds for unlawful dismissal (Article 336, paragraph 2a CO).

Furthermore, an employee cannot be dismissed if he or she participates in a works council in his or her capacity as an elected employee representative or carries out trade union activities in accordance with the law (Article 336, paragraph 2b CO).

Dismissal without complying with the right to consultation

In the event of a collective redundancy, the employer is obliged to carry out a consultation with the employee representatives lasting between 10 and 20 days (Article 335f CO). In this procedure, the employer must first offer solutions to avoid or limit the redundancies or mitigate their consequences. He must then announce in writing the conditions for maintaining the collective redundancy.  If this consultation with the employees or their representatives does not take place, the dismissal is deemed unlawful (Article 336, paragraph 2c CO).

Other unlawful reasons

There are also other grounds for termination that can be considered unlawful even though they are not listed in the CO. These include, for example, dismissal following a conflict in the workplace without the employer having taken conciliatory measures. A so-called "dismissal with notice of change" is also considered abusive. This involves introducing working conditions that would worsen the employee's situation without there being compelling reasons for doing so.

Even in the event of unlawful dismissal, the principle of freedom of dismissal continues to apply under Swiss labour law. An abusive dismissal is therefore still valid and the employment relationship is terminated in any case.

However, as it is an unlawful dismissal, a dismissed employee is generally entitled to financial compensation. This compensation is determined by the court according to the severity of the employer's misconduct, the severity of the attack on the employee's personality and the possible misconduct of the employee (Article 336a CO). The duration of the employment relationship and the impact of the dismissal on the employee's economic and professional situation are also taken into account when determining the amount of severance pay. However, this is limited to a maximum of six months' salary and in practice amounts to two or three months' salary.

Special case: There is an exception in which the employment relationship may continue to exist and unlawful dismissals are void in this sense: If a dismissal is made for a discriminatory reason within the meaning of the Gender Equality Act (GEA), a court can order that the employment relationship must continue, at least provisionally (Articles 9 and 10 GEA). However, the person dismissed can also decide to claim compensation from their employer instead.

Objecting to a dismissal

However, in order to assert the right to compensation following an unlawful dismissal, the employee must lodge a written objection to the dismissal before the end of the notice period (Article 336b CO). The aim of this objection is to give both parties the opportunity to reach an out-of-court settlement and to examine whether the employment relationship can be maintained. If no agreement is reached, the employee must take legal action within 180 days of the end of the contract. If these deadlines are not met, the right to compensation lapses.

Tip: If you have been dismissed for an unlawful reason, it is highly recommended that you seek legal advice immediately. An employment lawyer can inform you of your employee rights in such a situation, help you to appeal against the dismissal and represent you professionally in any legal proceedings in your interests. They will also be familiar with the deadlines for objections and legal action so that you do not have to worry about your claims being forfeited.

Pregnant and breastfeeding women are a group that is afforded special protection in the workplace. In general, pregnancy is by no means considered an illness. You can therefore continue to work until shortly before the birth - if you wish. However, if you feel unwell, you can stay at home at any time and without a medical certificate.

Protection against dismissal

You are strictly protected against dismissal throughout your pregnancy and up to 16 weeks after the birth. Dismissals that were previously issued are paused for this period - the notice period only resumes afterwards (Article 336c CO). The protection against dismissal applies until the end of the extended maternity leave that may arise due to hospitalisation of the newborn.

Health protection in the workplace

Pregnant women should be given special protection in the workplace (Article 35 ArG). Accordingly, you should not carry out activities that could jeopardise your well-being or that of your child during your pregnancy and while breastfeeding. In particular, you should avoid lifting heavy objects and standing for long periods of time. As far as possible, your employer must assign you other tasks and grant you additional break times. If your duties are completely cancelled, your employer must pay you at least 80% of your salary and an appropriate compensation for any loss of remuneration in kind.

Breastfeeding

As a mother, you are permitted to breastfeed your child on or off the premises during its first year of life. The time during which you are breastfeeding may not be deducted from your working hours and must therefore be deducted from your salary as normal. If you work part-time for up to four hours, you are entitled to 30 minutes a day; if you work up to seven hours, you are entitled to 60 minutes. If you work more than seven hours, you are entitled to 90 minutes of breastfeeding time.