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– October 25, 2023

When is a termination shortly before retirement abusive?

Under certain circumstances, termination shortly before retirement is abusive, as there may be a special duty of care to the employee in this case.

According to Art. 336 para. 1 lit. a CO, a dismissal is abusive if it is given because of a characteristic to which the employee is entitled by virtue of her personality, such as gender, nationality or age. An exception to this exists if this characteristic is related to the employment relationship or significantly impairs cooperation within the company. In this case, all reasonable measures must have been taken to eliminate the conflict in another way in order to negate the abusive nature (BGE 132 III 115).

Due to an illness that impairs the employee’s work performance, the employer may terminate the employment after the expiry of the blocking period pursuant to Art. 336c CO. If the termination has no significance of its own for the employer, a worsening of the employee’s economic situation may lead to an obligation to pay compensation, which, however, need not be directly related to an abuse.

In principle, the termination due to indefinite absence of the employee is therefore not abusive in law, even if she is close to retirement.

However, the unfairness of a termination may result from the motive as well as from the manner of the termination. The terminating party must comply with the requirement to exercise its rights sparingly. In particular, it must not play a false game that blatantly contradicts the principle of good faith. A serious violation of personality rights can make the termination appear abusive. Mere indecent behavior on the part of the employer, on the other hand, is not sufficient.

Furthermore, it is not necessary for the other party to be heard or warned prior to termination, nor is there any obligation to take more lenient measures in advance. In the case of older employees, the employer has a special duty of care. The extent of this is determined on the basis of an assessment of the overall circumstances. In the case of termination prior to retirement, this means that the employee should be informed of the intended termination at an early stage and an alternative should at least be examined.

However, a duty of care towards older employees is not always to be affirmed and the violation of such a duty does not always have to lead to the unfairness of the termination or to its cancellation. It is always necessary to consider the circumstances in each individual case.

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

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