Switzerland: Long Anticipated Ruling of the Swiss Federal Supreme Court: Dismissal Possible in Case of Job-Related Incapacity to Work

In its Judgement 1C_595/2023 of 26 March 2024, the Federal Supreme Court (FSC) ruled that in cases where an incapacity to work is limited to the current workplace, the temporary protection provisions regarding dismissal (blocking periods) do not apply.

According to Article 336c of the Swiss Code of Obligations (CO), a dismissal by the employer is considered inopportune during certain periods (so-called blocking periods). In particular, blocking periods apply in cases where employees are unable to work due to illness. The duration of the respective blocking periods in case of illness depends on the years of service of the employee concerned (cf. art. 336c par. 1 lit. b CO). A dismissal during an ongoing blocking period is null and void. In case the employee falls ill only after notice of termination has been given, but during the notice period, the notice period is suspended.

In a recent judgement, the Federal Supreme Court decided on an exception to this principle: in case the incapacity to work is not of a general nature but merely relates to the current occupation, i.e., the employee would be employable with another employer (so-called job-related incapacity to work), the blocking periods do not apply. The exception has already been applied by Cantonal courts in the German speaking part of Switzerland, but the practice is widely disputed in the French speaking part.

 

Practical Implications

Many times, medical certificates provided by the employees do not specify if the illness is workplace-related. Whilst employers are not entitled to receive any information on the cause of the illness, they are entitled to receive information on whether the illness is workplace related.

Attention should be drawn to the benefits of the daily illness benefits insurance. Some insurance refuse payment in case of a workplace-related illness all together. Most insurance policies invoke the employee’s duty to remedy damage and impose a deadline upon which they should find new employment (3-5 months). After the deadline has expired, they deny further daily benefit payments, and the question arises whether the employer must subsidize the continued pay by the insurance for a certain time. The answer greatly depends on the wording of continued pay in case of illness in the employment agreement and needs to be assessed on a case-by-case basis.