If an employee is absent due to illness for an extended period of time, this can lead to uncertainty. It raises questions regarding a possible dismissal. When may a notice of termination be issued during the employee’s absence and in which cases not?
This article is intended to provide an overview of the protection against dismissal during illness.
What is meant by temporary protection against dismissal?
If the probationary period is completed and there is an ordinary employment relationship, protection against dismissal for a certain period of time applies in the event of illness of the employee in accordance with Art. 336c para. 1 lit. b CO.
The reason for the temporary ban on dismissal is that it is unreasonable to expect the employee to look for a new job during his or her illness, or that she would be unlikely to be hired by a new employer due to her illness-related absence. The purpose of the restriction on dismissal is to protect the employee from unemployment as a result of their illness.
As a prerequisite for the application of a suspension period, the employee must be ill through no fault of their own. The illness must be of a certain severity for the temporary protection against dismissal to apply. Protection against dismissal does not apply in the case of a simple summer flu, cold or similar. It is worth submitting a medical certificate to the employer as proof.
Each new illness that has no causal connection to the previous illness triggers a new blocking period. For example, if the employee was on sick leave due to a depressive episode, this triggers a blocking period. If the employee falls ill with Lyme disease in the same year due to a tick bite, this triggers a new blocking period. A causal connection and therefore no new blocking period is triggered in the case of relapses, recurrences or late effects.
Excursus: No temporary protection against dismissal in the event of job-related illness
However, if the illness has a direct connection to the workplace, this cannot justify protection against dismissal according to federal court case law. [1] The Federal Supreme Court justifies the lack of protection against dismissal by the fact that the employee is able to look for and take up another job precisely because of the job-related nature of the illness. Finally, it must be mentioned here that if an employee is completely unable to work due to the job-related illness, the protection against dismissal applies again.
What is the temporal effect of the restriction on dismissal?
Art. 336c para. 1 lit. b CO provides for different blocking periods for each year of service: 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. If the absence due to illness lasts beyond the change of year of service and a longer blocking period is applied, then the longer blocking period applies. The days that have already elapsed are deducted from the longer blocking period.
The length of the blocking period is determined by the actual length of the absence due to illness. Accordingly, the protection against dismissal ends at the moment when the inability to work ceases. The lengths specified in Art. 336c para. 1 lit. b CO only represent a maximum length of the blocking period.
What is the effect of temporary protection against dismissal?
During the period of protection against dismissal, any dismissal issued by the employer is null and void. This means that it is as if no notice of termination had ever been given. In order to terminate the employment relationship, the employer must terminate the employment relationship again at the end of the month following expiry of the period of suspension. The employment relationship ends at the end of the notice period. However, if the employee terminates the employment relationship during the notice period, the termination is effective.
If the employer gives notice of termination before the employee falls ill and the employee falls ill during the notice period, the notice of termination remains effective. The notice period is interrupted in accordance with Art. 336c para. 2 CO and resumed after the end of the qualifying period.
Frequently asked questions about protection against dismissal during illness
How long does the blocking period last?
The length of the blocking period is determined by the actual length of the absence due to illness. Accordingly, the protection against dismissal ends the moment the inability to work ceases. The lengths specified in Art. 336c para. 1 lit. b CO only represent a maximum length of the blocking period. Accordingly, the blocking period ends in any case after.
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- 30 days in the first year of service
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- 90 days form the second to the fifth year of service and
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- 180 days from the sixth year of service.
What happens if there are several cases of illness?
In the event of several independent cases of illness within one year, a new blocking period can be triggered for each case. However, relapses or sequelae of the same illness do not trigger a new qualifying period.
What happens if an illness occurs during the notice period?
If an employee falls ill during the notice period after receiving notice of termination, the notice period is interrupted for the duration of the incapacity to work (at most until the end of the blocking period) and continues to run after the end of the illness. A notice of termination issued by the employer during a valid blocking period is null and void and must be issued again after the blocking period has expired.
[1] BGer 1C_595/2023 Urteil vom 26.3.2024.
