I have been fired in Switzerland: what should I do?
Being dismissed in Switzerland can be unsettling, particularly if you are unfamiliar with the Swiss employment system.
Swiss law gives employers relatively broad freedom to terminate an employment relationship. This does not, however, mean that every dismissal is lawful, that the date chosen by the employer is correct, or that you should simply accept the financial terms offered to you.
If you have just been dismissed, there are several points you should check before signing anything.
Do not sign a termination agreement immediately
An employer may ask you to sign a termination agreement, settlement agreement or waiver shortly after announcing the dismissal.
There may be good reasons to negotiate such an agreement, particularly for senior employees. But signing too quickly can mean giving up claims relating to salary, bonus, holidays, commissions, shares, notice periods or the circumstances of the dismissal.
If the employer has already decided to terminate your employment, there is usually little reason to sign an additional agreement before understanding what you are giving up — and what you may be able to negotiate in return.
Check your notice period
Start with your employment contract and any applicable collective employment agreement.
If no different rule applies, Swiss law generally provides, after the probationary period, for:
one month's notice during the first year of employment;
two months' notice from the second to the ninth year;
three months' notice from the tenth year onwards.
The employment relationship normally ends at the end of a month. During the probationary period, the statutory notice period is generally seven days, although contractual arrangements may differ.
For senior employees, the contractual notice period is often longer.
A mistake in calculating the notice period can represent several months of salary.
Ask why you have been dismissed
In Switzerland, an employer does not generally need to prove misconduct or another specific reason before giving ordinary notice.
However, if you request it, the employer must provide the reasons for the termination in writing.
This can be important.
The reason given may reveal that the dismissal is potentially abusive, retaliatory or connected with another protected situation. It can also become relevant during negotiations over a termination package.
Check whether you were protected against dismissal
Swiss law prohibits an employer from giving ordinary notice during certain protected periods.
After the probationary period, for example, an employee who is unable to work because of illness or accident is generally protected for:
30 days during the first year of employment;
90 days from the second to the fifth year;
180 days from the sixth year onwards.
Special protection also applies during pregnancy and for 16 weeks following childbirth.
A dismissal given by the employer during a protected period may be invalid. If the incapacity begins only after valid notice has already been given, the notice period may instead be suspended and resume later.
These rules can materially change the actual termination date.
Was the dismissal abusive?
The fact that a dismissal feels unfair does not necessarily make it legally abusive.
Swiss law nevertheless protects employees against certain types of dismissal. Problems can arise, for example, where an employee is dismissed because they have asserted contractual rights in good faith, in retaliation for certain protected activities, or in circumstances covered by the rules on abusive termination.
An abusive dismissal will normally not cancel the termination itself, but it may result in compensation of up to six months' salary.
There are also strict deadlines. In particular, an employee wishing to claim compensation for abusive dismissal must generally object to the dismissal in writing before the notice period expires and bring the claim within 180 days after the employment relationship ends.
Waiting too long can therefore mean losing the claim.
Review your bonus, commission and other compensation
For many senior employees, the largest dispute is not actually about the dismissal itself.
It is about money.
You should check in particular:
salary until the effective termination date;
annual or performance bonus;
commissions;
unused holiday entitlement;
overtime, where applicable;
outstanding expenses;
share or option plans;
pension or insurance consequences.
Whether a bonus remains payable after dismissal depends on how it is structured, the employment contract, past practice and the circumstances of the case. A payment described as “discretionary” by the employer is not necessarily discretionary in every legal sense.
The amounts involved can be substantial.
Garden leave does not necessarily end the employment relationship
An employer may release you from the obligation to work during the notice period.
This is commonly referred to as garden leave.
You may no longer have to come to work, but the employment relationship normally continues until the contractual termination date. Questions can then arise regarding salary, holidays, bonus entitlement, expenses and whether you may start working for another employer before the existing contract formally ends.
These issues should be clarified before accepting a new position.
Check your non-compete clause before accepting another job
Senior employment contracts frequently contain non-compete or non-solicitation clauses.
Do not assume that a clause is enforceable simply because you signed it.
Swiss law places important restrictions on post-contractual non-compete clauses, and the fact that your employer terminated the employment relationship may itself be highly relevant.
This issue should ideally be reviewed before you tell a prospective new employer that you cannot join them or before paying any contractual penalty.
If you are an expatriate, check your immigration position
For foreign employees, losing a job can raise a second issue: residence and work permits.
The consequences depend considerably on your nationality and the type of permit you hold. EU/EFTA nationals and third-country nationals are subject to different regimes.
If your ability to remain or work in Switzerland may be connected to your employment, this should be examined promptly rather than after your notice period has expired.
Start looking for work immediately
If you may need Swiss unemployment benefits, you should not wait until your final day of employment before starting your job search.
The Swiss unemployment authorities expect employees to make reasonable efforts to find new work during the notice period. Evidence of job applications should be retained, and registration with the regional employment centre (RAV) can take place before the employment actually ends. Insufficient job-search efforts may affect unemployment benefits.
Before accepting the employer's position
A dismissal does not automatically mean that there is a legal claim.
But it is often worth reviewing the situation before signing documents or accepting the figures calculated by the employer — particularly where the employee is a senior executive, has a significant bonus, is subject to a non-compete clause, holds shares or options, or has immigration concerns.
A relatively short review at the beginning can clarify both whether there is something to challenge and what may realistically be negotiated.
Have you been dismissed from a position in Switzerland?
Bénard Avocats advises employees and executives on Swiss employment law, including dismissals, termination agreements, bonuses, non-compete clauses and employment disputes. Consultations can also be conducted in English and by videoconference.