Jurlio from Lawise.ai:
In Switzerland, termination of an employment relationship is generally freely permitted. However, in the case of performance-related terminations – such as due to insufficient work performance or failure to meet targets – the question arises whether the employer must fulfill special requirements. In this article, you will learn when a termination for performance reasons is permissible, whether a warning is required, what role documentation plays, and how the courts assess such cases.
A termination due to poor performance is permissible in Switzerland. However, without a prior warning and clear documentation, there is a high risk that it will be considered abusive.
TERMINATION DUE TO INSUFFICIENT PERFORMANCE: PERMISSIBILITY
Principle of Freedom to Terminate
According to Art. 335 CO, an indefinite employment relationship can be terminated by either party at any time, subject to the notice period – even without stating reasons. A termination due to insufficient performance is generally permissible.
Performance Deficiencies as Grounds for Termination
Performance weaknesses, failure to meet targets, or lack of efficiency can constitute objective grounds for termination. However, the prerequisite is that the performance is objectively insufficient and not merely subjectively perceived as unsatisfactory.
Examples:
Repeated failure to meet agreed targets despite support
Frequent errors leading to operational damage
Long-term below-average performance compared to colleagues
WARNING BEFORE TERMINATION FOR PERFORMANCE: REQUIRED OR NOT?
No Legal Obligation to Issue a Warning
Swiss employment law does not contain an explicit obligation to issue a warning before an ordinary termination. Nevertheless, a prior warning is often required in practice to make the termination appear proportionate and not abusive.
Significance of the Warning
A warning serves to clearly and verifiably inform the employee:
What performance deficiencies exist
What expectations exist
What consequences are threatened if there is no improvement
If such a warning is missing, a termination may be judged as hasty or disproportionate – especially in the case of long-term employees.
DOCUMENTATION: ESSENTIAL REQUIREMENT
Why Documentation is Crucial
The burden of proof for the lawfulness of the termination lies with the employer when defending against a claim of abusive termination. Clean documentation is therefore essential.
Important elements:
Target agreements and performance evaluations
Written warnings
Meeting minutes
Emails with references to performance deficiencies
Without Documentation: High Risk
If there is no traceable documentation, the employee can argue that the termination was arbitrary or abusive – for example, due to personal antipathy or as a reaction to criticism.
ABUSIVE TERMINATION FOR PERFORMANCE REASONS
When is a Performance-Related Termination Abusive?
A termination is abusive if it is not based on objective performance deficiencies, but rather, for example:
occurs as a reaction to legitimate criticism (Art. 336 para. 1 lit. d CO)
is issued to prevent claims (Art. 336 para. 1 lit. c CO)
is motivated by discrimination or harassment
In such cases, the employee can claim compensation of up to six months' salary (Art. 336a CO).
CONCLUSION
A termination due to insufficient performance is generally permissible in Switzerland – but not without risk. Employers should issue a clear warning beforehand and carefully document the performance deficiencies. Employees, in turn, have the right to defend themselves against an unjustified or abusive termination. Legal advice is recommended in such cases.
👉 Termination due to performance or failure to meet targets?
Jurilo reviews terminations under Swiss law – structured, neutral, and legally sound.
👉 See also: Termination After Conflict or Dispute at Work
👉 Related: Termination by Email or Verbally – Evidence Problems & Risks
👉 Basics: Notice Period in Switzerland – Calculation & Examples
Sources
Art. 335 CO
Art. 336 CO
Art. 336a CO
FAQ ON TERMINATION FOR PERFORMANCE OR FAILURE TO MEET TARGETS
Can I be terminated for poor performance?
Yes. A termination due to insufficient performance or failure to meet targets is generally permissible, provided it is objectively justified and does not occur abusively.
Does the employer have to warn me beforehand?
There is no legal obligation to issue a warning. In practice, however, a warning is often necessary to make the termination appear proportionate and justified.
What must be included in a warning?
A warning should specifically describe what performance deficiencies exist, what expectations the employer has, and what consequences are threatened if targets continue to be missed – ideally in writing.
Is a verbal warning sufficient?
Legally, yes, but for evidentiary reasons, a written warning is strongly recommended. Only then can the employer prove in a dispute that the employee was warned.
What happens if I show no improvement despite a warning?
If performance does not improve despite a warning, the employer can terminate the employment relationship ordinarily – subject to the notice period.
Can a termination for performance reasons be abusive?
Yes. If the termination serves, for example, as a pretext to get rid of an unwanted employee, or is based on discriminatory motives, it can be considered abusive.
What can I do against an unjustified termination?
You can challenge the termination in writing as abusive and file a claim for compensation within 180 days after the end of the employment relationship.
Does the employer have to document my performance?
Yes. If the employer relies on performance deficiencies, they must be able to prove them – e.g., through target agreements, evaluations, or warnings.
What if I was sick and therefore didn't meet my targets?
In such cases, the employer must examine whether the failure to meet targets is attributable to circumstances beyond the employee's control. A termination despite illness may under certain circumstances be impermissible or abusive.
Am I entitled to a reference letter despite a performance-related termination?
Yes. Even with a termination due to performance deficiencies, you are entitled to a favorable and truthful employment reference according to Art. 330a CO. The wording must be fair and objective.
