A claim for unfair dismissal can be made if the reason for dismissal was not one of a number of ‘fair reasons’ (e.g. conduct, capability, "some other substantial reason", statutory ban or redundancy).
Most employees need a particular length of service to bring a claim for unfair dismissal. At present this is two years’ service. However, all employees can bring a claim for unfair dismissal if the reason for dismissal is deemed to make the dismissal automatically unfair (e.g. for whistleblowing or for family reasons such as dismissals for reasons connected to pregnancy, parental leave, or requests for flexible working).
Even if the dismissal is deemed to be for a fair reason, to avoid a successful claim for unfair dismissal the employer must still follow a fair procedure and act reasonably in dismissing the employee.
If the reason for the dismissal involves discrimination against the employee (because of a protected characteristic such as sex, race, age or disability), employees may make a discrimination claim irrespective of their length of service.
Employees with two years of service have the right to request a written statement of reasons for dismissal. Employers must provide the statement within 14 days of the request.
Irrespective of length of service, employees dismissed during pregnancy or statutory maternity or adoption leave are automatically entitled to a written statement of reasons for dismissal without having to request it.
Notice may be given without providing any reason (‘Kündigungsfreiheit’).
Both employer and employee may end the employment relationship without providing reason or cause.
However, a dismissal must not be abusive (wrongful or unlawful dismissal). Subject to certain exceptions, such a notice is unlawful where issued:
- due to an inherent personal quality of the other party (skin colour, nationality, sexuality); or
- because the other party exercises a constitutional right; or
- solely in order to prevent claims under the employment relationship from accruing to the other party; or
- because the other party asserts claims under the employment relationship in good faith; or
- because the other party is performing military service or a non-voluntary legal obligation; or
- because the employee is or is not a member of an employees’ organisation or because he carries out trade union activities in a lawful manner; or
- while the employee is an elected employee representative on the works council and the employer cannot cite just cause to terminate his employment; or
- in the context of mass redundancies ordered by the employer if the consultation process is not observed.
In any of the above circumstances, the notice remains valid, but the party abusively giving notice may be obliged by the court to pay an indemnity of up to six months' salary.
The employer may not terminate the employment relationship during the following periods, and notice given during these periods is void:
- while the other party is performing Swiss compulsory military service, and during the four weeks preceding and following the service if the service lasts for more than 11 days; or
- while the employee, through no fault of his own, is (partially) prevented from working due to illness or accident, for up to 30 days in the first year of service, 90 days between the second and fifth years of service, or 180 days thereafter; or
- during the pregnancy of an employee, and for 16 weeks following the birth.