Dismissal during illness is a sensitive and crucial issue for employers and employees alike. In a recent ruling handed down on March 26, 2024, the Swiss Federal Supreme Court used the (controversial) notion of incapacity limited to the workplace to justify the validity of an untimely dismissal weakening the protection against it. This article discusses this case and the consequences for employees and employers.
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Definition and importance of protection against untimely dismissal
Under Swiss law, protection against dismissal at an inopportune time is a legal mechanism designed to protect employees against dismissal during particularly sensitive or vulnerable periods. This protection is foreseen in the Swiss Code of Obligations, in particular Articles 336c et seq. It covers a number of specific situations, including incapacity for work due to illness or accident, pregnancy or maternity, and compulsory military or civilian service. Each of these situations entails a specific period of protection.
Under the law, in the event of illness or accident, an employee with an open-ended contract may not be dismissed for a certain period determined by seniority:
- During 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.
Other rules apply to the duration of protection in the event of pregnancy and maternity, as well as civil or compulsory military service.
Importance
Protection against dismissal during a period of incapacity is
crucial. It enables the employee to concentrate on his or her
health during the period of protection, while offering financial
stability. It then guarantees a full notice period, during which he
or she can devote his or her energy to finding a new job. It is
also sometimes pointed out that the rules about untimely dismissal
serve a better chance in finding employment as a future employer
will not be inclined to take on an incapacitated worker because of
the uncertainty as to when he or she will be able to return to
work.
Dismissal during a protection period is null and void. In the event of incapacity for work after dismissal, the period of leave is suspended.
Disability limited to the workplace: a relatively new development
In its decision 1C_595/2023 of March 26, 2024, the Federal Supreme Court had to rule on the dismissal of an employee (a rather senior public service employee) who was on sick leave due to tensions and conflicts in the workplace. According to the principles set out above, the dismissal should have been considered null and void. However, the Federal Supreme Court re-examined thoroughly the issue and leaning on the opinion of some authors came to the conclusion that when the illness is limited to the workplace or is due to the workplace, the protection against dismissal does not apply.
This is the second time that the Federal Supreme Court has ruled that incapacity limited to the workplace does not protect an employee against dismissal (the first time was in a 2016 ruling). In its analysis, the Federal Supreme Court relies in particular on various authors of doctrine who hold that (i) when the inability to work is closely linked to the workplace (due to conflicts, stress), but that, (ii) the employee has no other damage to or issue with his or her health, he or she does not need to be protected against untimely dismissal. For example, an employee who is unable to work, but can do sports, meet friends or travel, could be denied the protection against untimely dismissal. In such cases, it considers that the employee could be perfectly capable of working elsewhere (and should do so) as his or her health condition is due to its immediate working environment. The employee is therefore not entitled to protection.
Some cantonal courts have also been convinced by this interpretation and have been applying this theory - in an isolated manner - since around 2014.
Assessment
Incapacity limited to the workplace has a significant impact on several employment law questions. Next to whether the dismissal is null and void, there is the question of the right or obligation for the employee to change his or her workstation (from the point of view of the employer's obligation to protect his or her employees' health and the obligation to minimize damages), the right to payment of salary during the period of incapacity, the right to daily allowances under loss-of-earnings insurance, and the delicate problem of harassment in the workplace. It should be remembered that harassment most often leads to incapacity for work, the primary cause of which is to be found in the employment relationship, and for which the employee in question is most often not responsible.
On the employer's side, careful consideration must be given to any dismissal during a period of limited incapacity for work, in view of the consequences for the duration of the employment relationship and the salary payment obligations.
Looking at the situation as a whole, cases of application might be limited to specific situations, such as when medical certificates are not conclusive, or when there is a clear contradiction between the attending physician and the loss-of-earnings insurance consultant. However, it seems that the new practice in gaining traction and it is to expect some new cantonal or federal rulings on the matter.
In any case, it is in the interest of both employer and employee
to ask themselves the right questions in the event of dismissal
during or immediately prior to an incapacity of work due to
work-related disputes or work-related stress.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.