Unfair dismissal in Swiss employment law

In Swiss employment law, unfair dismissal holds a significant place. In Switzerland, the termination of an employee must always respect certain conditions, and failure to meet these conditions can result in the dismissal being classified as unfair. A dismissal is considered unfair if it is pronounced under circumstances that, according to the rules of good faith, do not allow for the termination of the employment contract.

Swiss law is characterized by a balance between the protection of employees and flexibility for employers. However, identifying and predetermining what exactly constitutes unfair dismissal can be complex, and Swiss courts regularly examine individual cases to clarify principles.

Conditions of unfair dismissal

The concept of unfair dismissal in Switzerland is rich and multidimensional. The conditions that characterize a dismissal as unfair are mainly defined by Article 336 of the Code of Obligations.

Unfair dismissal due to discrimination

Discrimination in the context of dismissal is an area of great concern in Swiss labor law. A dismissal is considered unfair if it is made for discriminatory reasons, which can manifest in several ways.

Discrimination based on gender, for example, may include the dismissal of an employee due to pregnancy, which would be manifestly discriminatory and specifically protected by Swiss law. Discrimination can also be based on an employee’s race or ethnic origin, which includes dismissal decisions based on prejudices or stereotypes associated with the race or ethnic origin of the employee.

Age is another area where discrimination can occur, such as when an older employee is dismissed simply because of their age rather than their ability to perform their job. Discrimination based on religion is also prohibited in Switzerland, where freedom of belief and conscience is protected by the Constitution. Dismissing an employee due to their religious beliefs, or because of their religious practices, would be a discriminatory act.

Sexual orientation is another protected criterion, and dismissing an employee due to their sexual orientation is also prohibited. Additionally, in Switzerland, workers’ rights to unionize and participate in union activities are protected. Therefore, dismissing an employee due to their union affiliation or activity in a union would be discriminatory and unfair.

Unfair dismissal due to the exercise of a constitutional right

A dismissal may be deemed unfair if it is pronounced because the employee has lawfully exercised their constitutional rights. In Switzerland, an employee’s exercise of constitutional rights is protected and cannot generally be used as a ground for dismissal. These rights may include freedom of expression, freedom of assembly, freedom of religion, and other fundamental rights. Dismissing an employee for exercising these rights would be considered unfair dismissal. This could include actions such as whistleblowing on illegal or immoral acts committed within the company, or having expressed a political opinion, even if it disagrees with that of the employer or management.

However, the protection of exercising constitutional rights is not absolute. If the employee exercises these rights in a way that violates the law, disrupts the workplace, or is incompatible with the obligations of their position, the dismissal may be justified. Jurisprudence has established that evaluating the legitimacy of dismissal in this context requires a delicate weighing of the interests of the employee and the employer.

Unfair dismissal due to timing

Thirdly, the timing of a dismissal can also render it unfair. Dismissing an employee during a period where they are in a situation of vulnerability can lead to the characterization of the dismissal as unfair, and several situations warrant particular consideration.

Dismissing an employee during a long-term illness can be problematic, especially if the employee is incapacitated from working and depends on their job for access to health-related benefits. Swiss law imposes certain protections regarding the duration of the illness and the timing when a dismissal can legitimately take place, to ensure that the employee is not unjustly deprived of support at a critical time.

Mandatory military service in Switzerland is another period during which dismissing an employee can be considered unfair. Given that military service is a legal obligation for many Swiss citizens, dismissing an employee due to this obligation would be manifestly unfair and contrary to fair employment principles.

A dismissal following an accident, especially if it is work-related, is also a sensitive area. If an employee is dismissed following an accident that has rendered them temporarily or permanently unable to work, the evaluation of the situation needs to be thorough. It should particularly consider the nature of the accident, the possibility of reassignment or adaptation of the position, and the expected duration of incapacity.

Unfair dismissal due to a personal reason

A dismissal may be judged unfair if the reason is personal and unrelated to the employee’s ability to perform their job or the needs of the business. This can include reasons such as non-work-related personal disputes, disagreements with management or colleagues on non-professional matters, or other personal factors. It is important to recognize that an employer generally has the right to terminate an employment contract for various reasons.

However, when these reasons are purely personal and unrelated to the employee’s professional functions, the situation becomes more complex. The dismissal could be perceived as an emotional reaction rather than a rational business decision, and as a result, be considered unfair. For example, if an employer dismisses an employee simply because they had a personal altercation outside of work, this could be seen as disproportionate. The key here is the relevance of the personal reason to the employee’s work. If the dispute does not affect the employee’s ability to perform their job or does not have a negative impact on the business, it is likely that the dismissal will be judged unfair.

Consequences and remedies of unfair dismissal

The consequences of unfair dismissal in Switzerland are serious and affect both the employer and the employee. From the employer’s side, if a dismissal is judged unfair by a court, this can lead to an obligation to pay compensation to the employee. This compensation is governed by Article 336a of the Code of Obligations and can amount to up to six months’ salary. The exact compensation depends on various factors, such as the duration of the employment contract, the fault of the employer, and the specific circumstances of the dismissal.

For the employee, in addition to the possibility of financial compensation, there are specific remedies available in the event of unfair dismissal. The employee must act quickly, as there is a deadline to challenge a dismissal, which is generally 30 days after the notification of the dismissal. The employee can seek to engage in mediation or conciliation with the employer, or go to court to seek redress. The procedure can be complex, often requiring the assistance of a lawyer specialized in labor law.

It is important to note that Swiss law generally does not offer the remedy of reinstatement. In other words, even if the dismissal is judged unfair, the employee generally does not have the right to be rehired. This contrasts with labor law regimes in other countries and underscores the importance of financial compensation as the main remedy for the employee.

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