Jurilo by Lawise.ai:
Termination during the probationary period raises many questions in Switzerland – especially regarding illness, notice periods, or permissibility on the first day of work. This article explains the legal rules according to the CO clearly and practically for employees and employers.
The probationary period is clearly regulated in Swiss employment law, but is often misinterpreted or unlawfully extended in employment contracts.
DURATION OF THE PROBATIONARY PERIOD
Statutory
The statutory probationary period is one month from the start of employment (Art. 335b Para. 1 CO).
Contractual
Contractually, the probationary period can be extended to a maximum of three months or also shortened – however, this must be agreed in writing (Art. 335b Para. 2 CO).
NOTICE PERIOD DURING THE PROBATIONARY PERIOD
Statutory
During the probationary period, the employment relationship can be terminated with a notice period of 7 days (Art. 335c Para. 1 CO).
Contractual Deviations
The notice period can be contractually shortened or extended – however, only if this was agreed in writing (Art. 335c Para. 2 CO).
WHAT APPLIES TO WHOM?
For Employers
Termination during probationary period generally possible
No protection period during illness
Caution with discriminatory motives
For Employees
7-day notice period
No protection against dismissal during illness
Compensation claim possible in case of abuse
TERMINATION DURING ILLNESS IN THE PROBATIONARY PERIOD
During the probationary period, no protection period applies during illness. This means:
The employer may terminate the employment relationship even during an illness – the termination is valid (Art. 336c CO only applies after the probationary period).
ABUSE & DISCRIMINATION
When a Termination is Still Unlawful
Even during the probationary period, a termination is unlawful if it is abusive or discriminatory – e.g.:
due to personal characteristics (e.g., gender, religion, origin)
because a constitutional right was exercised (e.g., freedom of expression)
to frustrate claims (e.g., upcoming continued salary payment during illness)
due to union membership or activity
Such terminations are considered abusive according to Art. 336 CO and can lead to compensation of up to 6 monthly salaries (Art. 336a CO).
👉 Unsure whether a termination during the probationary period is lawful?
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More on the Topic of Notice Period in Switzerland
Termination during the probationary period is subject to special rules. How notice periods are calculated after the probationary period and which periods generally apply, you can find out here:
→ Notice Period Switzerland: Simply Explained incl. Calculation & Examples
FAQ ON PROBATIONARY PERIOD TERMINATION
Termination on the First Day Permitted?
Yes, termination on the first day of work is permitted – also during the probationary period with 7 days notice.
Extend Probationary Period?
Yes, the probationary period can be contractually extended – but maximum to 3 months and only if this is agreed in writing (Art. 335b Para. 2 CO).
Termination via WhatsApp Valid?
Yes, a termination via WhatsApp is formally valid, but not recommended for evidentiary reasons.
Does the Probationary Period Also Apply to Part-Time Positions?
Yes, the probationary period applies regardless of the workload, so also for part-time.
Can the Probationary Period Be Extended Due to Illness?
Yes, in case of illness, the probationary period is extended by the duration of the absence (Art. 335b Para. 3 CO).
Is Immediate Termination Possible During the Probationary Period?
Yes, with an important reason, immediate termination is possible at any time (Art. 337 CO).
Does the Probationary Period Also Apply to Fixed-Term Employment Contracts?
Yes, even with fixed-term contracts, a probationary period can be agreed.
What Happens If No Probationary Period Is Mentioned in the Contract?
Then the statutory probationary period of 1 month automatically applies (Art. 335b Para. 1 CO).
Can a Termination During the Probationary Period Be Contested?
Yes, if it is abusive (e.g., discriminatory), it can be contested (Art. 336 CO).
Do Different Rules Apply to Apprentices or Interns?
Yes, for apprentices, special protective provisions under the Vocational Training Act apply; for interns, it depends on the contract content.
