– August 4, 2023

Termination of the employment contract during the blocking period

Art. 336c para. 1 CO regulates the circumstances under which the employer cannot lawfully dismiss the employee. Here is a brief overview.

First of all, according to Art. 336c para. 1 lit. b CO, the employee may not be dismissed if, through no fault of his or her own, it is wholly or partially impossible for him or her to perform his or her work due to illness or accident. The following blocking periods apply: during the first year of service for 30 days, from the second to the fifth year of service for 90 days and from the sixth year of service for 180 days.

According to Art. 336c para. 1 lit. c CO, the employer may also not dismiss a pregnant woman. In addition, there is a blocking period of 16 weeks after childbirth.

Art. 336c para. 1 lit. a CO also stipulates the case in which the employee performs compulsory military, protective or Swiss civilian service. If this service lasts for more than eleven days, the employer may not dismiss the employee for four weeks before and four weeks after the service.

Art. 336c para. 1 lit. d CO still regulates the case in which an employee, with the employer’s consent, participates in an ordered service for an aid operation abroad.

If a notice of termination is given in one of the above cases, it is void according to Art. 336c para. 2 CO. However, a notice of termination may be valid if it was given before the beginning of a blocking period. In such a case, however, the notice period is stopped for the duration of the blocking period and it only continues to run after the end of the same.

A lawful termination after the start of the blocking period is therefore not possible. According to the Federal Supreme Court, however, it is permissible to give notice of termination during the blocking period if the notice is received by the employee after the blocking period has expired. The time of receipt of the notice by the employee is decisive (BGer 4A_479/2021 of 29 April 2022).

If you have any questions in employment law, our lawyers will be happy to advise you.