Dismissal During Illness or Holidays: Is It Legal?

Protection Against Dismissal at Inopportune Times (art. 336c CO)

A notice given during protected periods is void (art. 336c para. 2 CO).

Illness and Accident (let. b)

1. 30 days during 1st year
2. 90 days 2nd-5th year
3. 180 days from 6th year

Applies per illness/accident episode. Successive incapacities for different causes open new protection periods (ATF 120 II 124).

Pregnancy and Post-Partum (let. c)

Protection throughout pregnancy and 16 weeks after delivery. Absolute, applies from day one, even during probation.

Military/Civil Service (let. a)

During service and, if over 11 days, four weeks before and after.

Effects

Nullity

Notice during a protected period is void. The employer must issue a new notice after the period ends.

Suspension

Notice given before a protected period but with unexpired notice: notice period is suspended during protection and resumes after. The contract ends at the end of the month following resumption (art. 336c para. 3 CO).

Only Applies to Employer

Art. 336c CO only restricts employer-initiated dismissals. The employee may freely resign during illness or holidays.

Holidays

Art. 336c CO does not list holidays as a protected period. However, doctrine and case law consider that the notice period does not run during pre-arranged holidays (ATF 134 III 354).

GEA Protection

Art. 10 GEA offers additional protection: gender-discriminatory dismissal is voidable if the employee acts during the notice period.