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Switzerland - Substantive requirements for dismissals

Substantive requirements for dismissals (justified and prohibited grounds) - Switzerland - 2013    

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Obligation to provide reasons to the employee: Yes
  • The Swiss CO distinguishes between two categories of individual dismissals:
    1) Ordinary dismissal ("congé") by one of the party with a notice period:
    Written justification must be provided upon request by the other party (art. 335 CO).

    2) Termination by one one the party with immediate effect:
    Written justification must be provided upon request of the other party (art. 337 (1) CO).

Valid grounds (justified dismissal): none
  • The employment contract can be terminated by either party provided that notice period requirements are complied with.
    No list of valid grounds is provided. However, this does not result in a total freedom to terminate the contract: it must be understood in light of the existence of prohibited grounds. In addition, the CO states that dismissal ("congé") should not constitute an abuse of right (art. 336 CO).

    For Termination with immediate effect (no notice) fair reasons are requested. (art. 337 (1) CO)

Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; temporary work injury or illness; race; colour; sex; sexual orientation; political opinion; social origin; nationality/national origin; age; trade union membership and activities; disabilities; performing military or civil service; exercise of a right; solely frustrate the formation of claims arising out of the employment relationship; state of health; conviction or failure to disclose a conviction
  • Amongst those prohibited grounds, only "trade union activities", "performing Swiss military service or civil service", "exercise of a constitutional right" and "solely frustrate the formation of claims of the other party arising out of the employment relationship" are specifically mentioned in the CO in art. 336 (2) and 336 (1) e) CO on unfair dismissal.

    However, art. 336 (1) a) CO refers to "quality inherent to the personality of the other party, unless such quality relates to the employment relationship or significantly impairs cooperation within the enterprise".
    This should be read in the light of art. 8 of the Swiss Constitution that specifically establishes a general prohibition based in particular on grounds of origin, race, gender, age, language, way of life, religious, ideological, or political convictions or because of a physical, mental or psychological disability.

    See art. 336c (1) b) for temporary (work) injury or illness. Only additional safeguards (timeframe) during which dismissal is not possible are provided. This ground could constitute a cause for dismissal if it impairs cooperation within the enterprise.

Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave; workers with a long period of service
  • *No dismissal of pregnant women and women on maternity leave: art. 336c (1) c) CO
    * Workers with an important length of tenure: higher protection with respect to severance allowance: art. 339c CO.
    * Workers' representatives: constitutes an abusive termination the dismissal of an employee during the exercise of a mandate as employees' representative unless the employer demonstrates a justified motive for dismissal: art. 336 (2) b) CO.