Jurilo by Lawise.ai:
A dismissal during illness is not always permissible in Switzerland. In certain cases, a statutory protection period applies according to Art. 336c CO, which protects employees from dismissals during illness.
The protection period is a central component of dismissal protection during illness in Swiss employment law.
WHAT IS THE PROTECTION PERIOD DURING ILLNESS?
The protection period is a statutory time frame during which the employer may not dismiss an ill employee.
Purpose: Protection of the employee from dismissal in a particularly vulnerable situation in terms of health and finances.
Connection with the notice period
The protection period during illness is closely linked to the statutory notice periods. A clear explanation of the calculation and the periods can be found here:
→ Notice period Switzerland: simply explained incl. calculation & examples
DURATION OF THE PROTECTION PERIOD
The duration of the protection period during illness depends on the length of employment according to Art. 336c para. 1 lit. b CO:
In the 1st year of service: 30 days
From the 2nd to the 5th year of service: 90 days
From the 6th year of service: 180 days
WHAT HAPPENS IF DISMISSAL OCCURS BEFORE ILLNESS?
If the dismissal is issued before the illness begins, it is valid. In this case, the illness does not trigger a protection period.
Legal consequence:
The notice period continues normally, even if the employee becomes ill during this time.
→ The dismissal is not extended and the employment relationship ends on the scheduled date.
Art. 336c CO only protects against dismissals that are issued during the illness – not against those that occurred beforehand.
SPECIAL CASES OF DISMISSAL DURING ILLNESS
Part-time employees
Part-time employees are also protected by the protection period according to Art. 336c CO – regardless of the workload. What matters is a permanent employment relationship after the probationary period has ended.
Repeated illness
In the case of multiple illness phases within a year, the following applies:
The protection period begins anew for each new illness, provided there was a complete recovery between episodes.
→ In the case of seamless or similar relapses, the protection period is not triggered again.
Mental illness
Mental illnesses (e.g. burnout, depression) are legally considered illness within the meaning of Art. 336c CO – provided they are confirmed by a doctor.
→ Dismissal protection applies in full, even for mental illnesses.
EMPLOYER PERSPECTIVE: WHAT HR MUST CONSIDER WHEN DISMISSING DURING ILLNESS
1. Check protection period (Art. 336c CO)
Before any dismissal, HR must clarify whether a protection period exists due to illness, accident, pregnancy or military service.
→ A dismissal during the protection period is void (i.e. legally ineffective).
2. Timing of dismissal is decisive
If the dismissal was issued before the illness began, it remains valid.
→ HR should document the receipt of the dismissal (e.g. by registered mail).
3. Request medical confirmation
In case of illness, a medical certificate of incapacity to work is required to justify the protection period.
→ HR may request a certificate and, in case of doubt, consult a trusted physician.
4. Notice period is extended in case of illness
If the employee becomes ill during the notice period, the period is interrupted and continues after the protection period ends. The prerequisite is that the dismissal has already been validly issued and the illness occurs during the ongoing notice period.
→ HR must correctly calculate the new end date.
5. Documentation and communication
All steps (dismissal, sick note, deadlines) should be documented in writing.
→ Clear communication with the employee is crucial to avoid misunderstandings and legal disputes.
6. Special caution with mental illnesses
For mental illnesses, dismissal protection is equivalent – HR should proceed particularly carefully and seek legal advice if necessary.
7. Avoid abusive dismissal (Art. 336 CO)
Even outside the protection period, a dismissal can be abusive, e.g. if it occurs solely because of illness.
→ HR should be able to objectively justify the reason for dismissal.
Conclusion:
HR must check, document and communicate particularly carefully in cases of dismissal during illness – to avoid legal risks.
👉 Jurilo checks protection periods in accordance with Swiss employment law.
Based on verified Swiss case law.
FAQ ON DISMISSAL DURING ILLNESS
Can you be dismissed during an illness in Switzerland?
No, during an illness a protection period applies in Switzerland – a dismissal by the employer is not permitted during this time (Art. 336c CO).
What is the protection period during illness in Swiss employment law?
The protection period is the statutory time frame during which the employer may not dismiss an ill employee – depending on the year of service, 30, 90 or 180 days (Art. 336c CO).
When does the protection period during illness apply?
The protection period applies from the 1st day of incapacity to work, provided the probationary period is over (Art. 336c CO).
How long does the protection period during illness last depending on the year of service?
1st year of service: 30 days
2nd–5th year of service: 90 days
From 6th year of service: 180 days
(according to Art. 336c CO)
Does the protection period also apply during the probationary period?
No, during the probationary period no protection period applies in case of illness – a dismissal is possible at any time (Art. 336c para. 1 CO only applies after the probationary period).
Does an illness automatically extend the notice period?
Yes, if the illness occurs during the notice period, it is interrupted and continues after the protection period ends (Art. 336c CO).
What happens if the dismissal was issued before the illness began?
The dismissal remains valid – the illness does not trigger a protection period if it begins after receipt of the dismissal.
Does the protection period also apply in case of repeated or prolonged illness?
Yes, the protection period also applies in case of repeated or prolonged illness – however only once per year of service and for a maximum of the legally stipulated duration (30/90/180 days according to Art. 336c CO).
Can an employer dismiss despite illness if there is an important reason?
Yes, if there is an important reason, the employer can terminate the employment relationship without notice even during an illness (Art. 337 CO).
Does the protection period during illness also apply to part-time employees?
Yes, the protection period during illness also applies to part-time employees, provided the employment relationship is permanent and the probationary period is over (Art. 336c CO).
What are the consequences for employers of a dismissal during the protection period?
A dismissal during the protection period is void – it has no effect, and the employment relationship continues unchanged (Art. 336c CO).
