ILO is a specialized agency of the United Nations
ILO-en-strap
Go to the home page
Site map | Contact us français | español
> GOVERNANCE - home > Employment protection legislation database - EPLex >

Switzerland
 


Source and scope of regulations - 2013    

References
  • Code of Obligations [CO], adopted on 30 March 1911, consolidated version dated 28 May 2013, including amendments up to Federal Law of 16 March 2012. In particular, see Part. II, Title X, Chap. I.
    (Loi fédérale complétant le code civil suisse - Livre cinquième: Droit des obligations - available in French, German and Italian)
    Date: 16 Mar 2012; view website » (view in NATLEX »)
Scope
Size of enterprises excluded (≤): 20
Remarks:
  • This exclusion only covers collective dismissals: see definition of collective dismissal in Art. 335d CO. However, the rules on individual dismissal apply to all enterprises.

Workers' categories excluded: civil/public servants; police; army; judiciary
Remarks:
  • The CO applies to every contract (incl. contract of employment) of private law.
    A specific law dated 2000 applies to 'employees of the Confederation' (Loi sur le personnel de la Confédération) and contains provisions on termination of employment.
    In addition, there are specific regulations applicable to employment relationship in the judiciary, army, police.

Types of employment contracts - 2013    

+ show references

Maximum probationary (trial) period: 3 month(s)

Remarks:
  • Art. 335b(2) CO.

Fixed term contract (FTC):
  • FTC regulated: Yes
  • Valid reasons for FTC use: no limitation
    Remarks:
    • However, existence of safeguards.
      1) According to Art. 334 CO, if a fixed-term contract is tacitly renewed, it is deemed concluded for an indefinite duration.
      2) Art. 2, al 2 Civil code on fraud has been interpreted as preventing the use of "chain contracts" when not justified by any objective reason and aiming at circumventing the terms and conditions of dismissals prescribed by law or the application (case law of the Federal Tribunal).
  • Maximum number of successive FTCs: no limitation
    Remarks:
    • However, existence of safeguards.
      1) According to Art. 334 CO, if a fixed-term contract is tacitly renewed, it is deemed concluded for an indefinite duration.
      2) Art. 2, al 2 Civil code on fraud has been interpreted as preventing the use of "chain contract" when not justified by any objective reason and aiming at circumventing the terms and conditions of dismissals prescribed by law or the application (case law of the Federal Tribunal).
  • Maximum cumulative duration of successive FTCs: no limitation
    Remarks:
    • However, existence of safeguards.
      1) According to Art. 334 CO, if a fixed-term contract is tacitly renewed, it is deemed concluded for an indefinite duration.
      2) Art. 2, al 2 Civil code on fraud has been interpreted as preventing the use of "contrats en chaîne" when not justified by any objective reason and aiming at circumventing the terms and conditions of dismissals prescribed by law or the application (case law of the Federal Tribunal).
  • % of workforce under FTC: 12.8 %
    Remarks:
    • Source: Eurostat, as of third trimester 2013.
      The figure refers to the percentage of employee with a contract of limited duration (= temporary job) of total number of employee aged 15-74 years.
      Eurostat data are based on the following definition:
      "A job may be considered temporary if employer and employee agree that its end is determined by objective conditions such as a specific date, the completion of a task or the return of another employee who has been temporarily replaced (usually stated in a work contract of limited duration). Typical cases are: (a) persons with seasonal employment; (b) persons engaged by an agency or employment exchange and hired to a third party to perform a specific task (unless there is a written work contract of unlimited duration); (c) persons with specific training contracts."

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

+ show references

Obligation to provide reasons to the employee: Yes
Remarks:
  • 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
Remarks:
  • 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
Remarks:
  • 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
Remarks:
  • *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.


Procedural requirements for individual dismissals - 2013    

+ show references

Notification to the worker to be dismissed: no specific form required

Remarks:
  • However, according to Art. 335 (2) CO, the party giving notice should state the reason for terminating employment in writing if requested by the other party.
    The same rule applies in case of dismissal with immediate effect : art. 337 CO.

Notice period:
Remarks:
  • 1) For ordinary dismissals:
    According to art. 335c CO, the general rule on the notice period is the following:
    *1 month during the first year of service;
    *2 months between 2 and 9 years of service;
    *3 months over 9 years of service.

    These timeframes can be modified by written agreement, collective agreement but shall not be less than 1 month.
    Exceptions to this rule are permitted only during the first year of service and if set by a collective agreement (art. 335c (2) CO).

    2) Specific rules apply to FTC:
    No notice period is prescribed except for FTC concluded for up to 10 years (art. 334 (1) CO).
    For FTC concluded for more than 10 years, a notice period of 6 months should be respected by either party (art. 334 (2) CO).
    • tenure ≥ 6 months
      • 1 month(s).
    • tenure ≥ 9 months
      • 1 month(s).
    • tenure ≥ 2 years
      • 2 month(s).
    • tenure ≥ 4 years
      • 2 month(s).
    • tenure ≥ 5 years
      • 2 month(s).
    • tenure ≥ 10 years
      • 3 month(s).
    • tenure ≥ 20 years
      • 3 month(s).

    Pay in lieu of notice: No

    Notification to the public administration: No

    Notification to workers' representatives: No

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2013    

    + show references

    Definition of collective dismissal (number of employees concerned):
    Collective dismissals are those made by the employer within a period of 30 days for reasons which are not related to the personality of the workers and affecting the following numbers of workers:
    1) at least 10 workers in undertakings employing between 20 and 100 workers;
    2) at least 10% of the workforce in undertakings employing between 100 and 300 workers
    3) at least 30 workers in establishments employing at least 300 workers.

    Remarks:
    • Art. 335d CO.

    Prior consultations with trade unions (workers' representatives): Yes

    Remarks:
    • Art. 335f CO.

    Notification to the public administration: Yes

    Remarks:
    • Art. 335g CO.

    Notification to workers' representatives: Yes

    Remarks:
    • Art. 335f CO.

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Priority rules for collective dismissals (social considerations, age, job tenure): No

    Employer's obligation to consider alternatives to dismissal (transfers, retraining...): Yes

    Remarks:
    • 335 f 2) CO: the employer must allow the workers' representatives to formulate proposals aiming at avoiding dismissals or mitigating their adverse effects.

    Priority rules for re-employment: No

    Severance pay and redundancy payment - 2013    

    + show references

    Severance pay:
    Remarks:
    • No general statutory severance pay or redundancy payment scheme. However, upon termination of the contract by either parties, a worker is at least 50 years old and has 20 or more or more years of service with the same employer is entitled to a long service payment ("indemnité à raison de longs rapports de travail")(art. 339c CO).
      As a minimum, this payment should amount to 2 months wages and shall not exceed 8 months: art. 339c (1) &(2) CO. However, it may be reduced in part or cancelled if the employee terminates his contract without proper justification, if the employer summarily dismiss him for valid reasons or of if the payment of this amount would result in difficulties for the employer (art. 339c (3) CO).

      Notes / Remarks
      No general statutory severance pay or redundancy payment scheme.
      However, upon termination of the contract by either parties, a worker is at least 50 years old and has 20 or more or more years of service with the same employer is entitled to a long service payment ("indemnité à raison de longs rapports de travail": art. 339c CO).
      As a minimum, this payment should amount to 2 months wages and shall not exceed 8 months: art. 339c (1) &(2) CO. However, it may be reduced in part or canceled if the employee terminates his contract without proper justification, if the employer summarily dismiss him for valid reasons or of if the payment of this amount would result in difficulties for the employer (art. 339c (3) CO).

      Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - 2013    

      + show references

      Compensation for unfair dismissal - free determination by court: No

      Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
      1) Ordinary dismissal constituting an abuse of rights:
      - Compensation awarded by the judge cannot exceed 6 months' wages.
      2) Dismissal with immediate effect, when there is no fair reason:
      - In addition to the amount the worker would have earned if the notice period had been observed, the judge may award compensation which cannot exceed 6 months' wages.

      Remarks:
      • 1) Ordinary dismissals constituting an abuse of rights:
        Art. 336a (1) and (2) CO. The amount of compensation must be assessed according to the rules of law and equity, in accordance with Art. 4 of the Civil Code (CC).
        2) Dismissals with immediate effect in the absence of fair reason: art. 337c CO.

      Reinstatement available: No

      Preliminary mandatory conciliation: No

      Competent court(s) / tribunal(s): ordinary courts; labour court

      Remarks:
      • According to Art. 343 CO, the procedure is to be conducted at a cantonal level. Depending on the canton, cases are either heard by a civil court or by a labour court.

      Existing arbitration: Yes

      Source of additional information - 2013    

      + show references

      Links

      Background paper for the Tripartite Meeting of Experts to Examine the Termination of Employment Convention, 1982 (No. 158), and the Termination of Employment Recommendation, 1982 (No. 166), April 2011 »
      See the country study on employment termination legislation in Switzerland: pp. 54-56.