17 June 2024

No protection against termination in the event of work-related incapacity to work

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The Swiss Federal Supreme Court recently made a groundbreaking decision (1C_595/2023 of 26 March 2024) with regard to terminations in the event of illness: If an employee falls ill as a result of a conflict at work, the temporary protection against termination may no longer apply. Our article provides a brief overview of the cases in which this Supreme Court case law, which already corresponds to the prevailing opinion in German-speaking Switzerland, may be relevant.

  • Michèle Stutz

    Legal Partner

No protection against termination in the event of work-related incapacity to work

The Swiss Federal Supreme Court recently made a groundbreaking decision (1C_595/2023 of 26 March 2024) with regard to terminations in the event of illness: If an employee falls ill as a result of a conflict at work, the temporary protection against termination may no longer apply. Our article provides a brief overview of the cases in which this Supreme Court case law, which already corresponds to the prevailing opinion in German-speaking Switzerland, may be relevant.

Temporary protection against termination due to illness

According to Art. 336c of the Swiss Code of Obligations (CO), the employer may not terminate the employment relationship after the end of the probationary period as long as the employee is wholly or partially incapacitated for work through no fault of his own, namely for 30 days in the first year of service, 90 days from the second to the fifth year of service and 180 days from the sixth year of service.

Temporary protection against termination applies only in the case of ordinary termination by the employer. It does not apply to terminations by the employee and, in the case of terminations without notice, only the provisions of Art. 337 et seq. CO are applicable. This means that in the case of termination without notice, the employment relationship is terminated in any case, and the termination is valid even if it occurs at an inopportune time or in the case of illness.

When does temporary protection from termination cease to apply under new case law?

In its decision, the Federal Supreme Court stated that the protection against termination ceases to apply if the employee's health impairment proves to be so insignificant that it does not prevent him or her from taking up a new job. According to the Federal Supreme Court, this may be the case in particular if the health impairment is limited to the workplace and is therefore a "work-related incapacity to work".

The Federal Supreme Court thus confirms the prevailing view in German-speaking Switzerland that there is an exception to the protection against termination in cases where an employee is only ill if he or she has to attend work. In such cases, an employee can easily look for a new job and does not need any additional protection.

Are you unsure whether the protection against termination of employment does not apply in a particular case because of a case of work-related incapacity to work? Our employment law experts are happy to assist you with this and other employment law issues. We look forward to hearing from you.
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