There are certain situations in life in which a termination is inopportune. These cases are defined by law. Both employers and employees can terminate an employment contract at an inopportune juncture (Art. 336c and Art. 336d CO).
When is a termination inopportune?
A termination during a blocking period is considered inopportune. It is irrelevant whether the position is part-time or full-time.
In order for the rules on inopportune termination to apply, the probationary period must have expired. Dismissals during the probationary period are not considered inopportune; in other words, there are no lock-out periods during the probationary period.
Lock-out periods
Termination by the employer
The blocking periods for dismissals by employers are exhaustively regulated in Art. 336c CO. Termination of employment by the employer is considered inopportune if it is pronounced
- while the employee is performing compulsory military, protective or civilian service and in the four weeks before and after the service if the service lasts more than eleven days
- while the employee is prevented from working through no fault of his own as a result of illness or accident (30 days in the first year of service, 90 days from the second to the fifth year of service, 180 days from the sixth year of service on)
- during pregnancy and the 16 weeks following childbirth
- before the end of extended maternity leave due to hospitalisation of the child (Art. 329f para. 2 CO)
- for as long as the employee is entitled to childcare leave in accordance with Art. 329j CO, for a maximum of six months from the beginning of the framework period
- while the employee is participating, with the employer’s consent, in a service ordered by a competent federal authority for an aid operation abroad
Termination by the employee
The blocking periods for terminations by employees are exhaustively regulated in Art. 336d CO. An untimely dismissal by an employee is deemed to have occurred if:
- the employee is able to perform the function of the superior or the employer himself and also has to take over the latter’s activity during absences, and
- the superior or the employer is performing compulsory military, protective or civilian service, as well as in the four weeks before and after the service, if the service lasts more than eleven days.
The inopportune termination by employees is hardly ever – if ever – asserted.
Agreements on lock-out periods
The parties may agree on longer lock-out periods in the employment contract for terminations by the employer or a shorter lock-out period for terminations by the employee. However, deviating agreements to the disadvantage of the employee are not permitted (Art. 361 and 362 CO).
When lock-out periods don’t apply?
No blocking periods apply during the probationary period. If the probationary period is extended, e.g. due to illness of the employee, termination during the extension is not untimely.
The employee cannot invoke the blocking periods if he or she has given notice him or herself.
Fixed-term employment relationships end without notice. Accordingly, the blocking periods do not apply to these employment relationships. If a maximum duration of the employment relationship has been agreed, the blocking periods must be observed up to the maximum duration.
Termination without notice ends the employment relationship immediately. If there was just cause for the termination without notice, the blocking periods are not relevant. If there was no just cause, the employment relationship remains terminated, but the employee is entitled to the wages attributable to the extended notice period.
If the employment relationship is terminated by mutual agreement, the blocking periods may have to be observed. If the purpose of the termination agreement is to circumvent the law, the blocking periods must be observed. If a blocking period is already running, the employer must, according to the case law of the Federal Supreme Court, provide the employee with adequate compensation.
Illness and accident
If an employee is prevented from working due to illness or accident, this triggers a blocking period regardless of whether he or she is partially or fully incapacitated for work.
Several periods of incapacity to work due to different illnesses or accidents each trigger their own blocking periods. In the case of relapses or subsequent illnesses, however, no new blocking period is triggered.
Termination before a lock-out period
If notice of termination is given before the start of a lock-up period, the termination is valid. In simple terms, the notice period is interrupted and extended by the duration of the blocking period.
If an end date applies to the termination of the employment relationship (end of a month or a working week) and this does not coincide with the end of the continued notice period, the latter is extended until the next following end date. The Federal Supreme Court calculates the notice period from a retrospective view.
Termination during a lock-out period
Notices of termination given during the course of a blocking period are null and void. The employment relationship is not considered terminated and continues.
What must the terminated party do?
The terminated party, usually the employee, should inform the other party in writing as soon as possible that a blocking period is running and that the termination is void during the blocking period or that the notice period is extended if the termination was given before the start of the blocking period.
What should the terminating party do?
If the notice of termination was given before the start of the lock-out period, the terminating party does not have to do anything. The notice of termination is valid and the employment relationship ends after the expiry of the notice period following the end of the blocking period.
If, on the other hand, the notice of termination was given during a lock-out period, the termination is void. The terminating party, usually the employer, can repeat the termination after the expiry of the blocking period, observing the notice period.
Entitlement to reinstatement?
If a notice of termination has been given during a blocking period, it is void. The employment relationship is not considered terminated. Re-employment is therefore not necessary.
If notice is given before the start of a blocking period, the notice is valid (unless it suffers from some other defect) and the employment relationship is deemed to have ended. There is no entitlement to re-employment.
Relationship to wrongful termination
If the dismissal is wrongful – for example, because it was given because the employee had to do military service – the employment relationship is nevertheless deemed to be terminated. In this case, the employee is entitled to compensation for the unfairness of the dismissal.
Relationship to summary dismissal
If the notice of termination is given without notice before or during a blocking period and the requirements for termination without notice are not met, the employment relationship shall nevertheless be deemed terminated without notice. However, the employee is entitled to the salary that would have been earned for the duration of the extended notice period and, if applicable, to additional compensation.
