Blocking periods on termination in Switzerland: protection in illness, accident and pregnancy

Losing your job is among the most far-reaching events in working life. It becomes harder still, and more of a threat to an employee's livelihood, when a dismissal falls into an already difficult phase of life — during a serious illness, after an unfortunate accident, during pregnancy or during military service. Swiss employment law takes account of this need for protection and provides strict mechanisms in the Code of Obligations to safeguard employees in such situations.

The central instrument for protecting employees is the regime of blocking periods on termination under Article 336c of the Swiss Code of Obligations (CO). Anyone in Switzerland affected by a dismissal, or seeking legal certainty as an employer, has to know the exact requirements, exceptions and serious legal consequences of a termination given at the wrong time.

This comprehensive expert guide sets out in detail when employers may not exercise their right to terminate, what periods apply in cases of illness, accident and pregnancy, what happens when a termination arrives before or during incapacity for work, and how to manage your processes on sound legal footing.

1. The legal basis: what is a blocking period (prohibition on termination)?

A blocking period — also known in legal language as a prohibition on termination — is a period defined by law during which the employer may not validly terminate the employment relationship.

The purpose of the law: the legislator wants to prevent employees who are weakened or distracted by unforeseeable circumstances such as health crises, family events (pregnancy) or civic duties (military service) from losing their job on top of everything else and being placed in distress.

The absolute effect: if the employer declares a termination during a running blocking period, that termination is void from the outset (Art. 336c para. 2 CO). It has no legal effect whatsoever. Legally speaking, it is as if the letter had never been sent.

Important note: the blocking periods under Art. 336c CO protect employees exclusively against terminations issued by the employer. If you as an employee give notice yourself, this protection against blocking periods does not apply!

2. The protected groups and periods (Art. 336c para. 1 CO)

The law clearly distinguishes between different life situations in which protection against termination applies:

A. Military, civil protection and civilian service (lit. a) The protection: while the employee is performing compulsory Swiss military service, civilian service or civil protection service — for the duration of the service as well as the four weeks before and after it, provided the service lasts more than eleven days —, the employer may not give notice.

B. Illness and accident (lit. b) In practice this is by far the most common area of application and the most prone to dispute:

In the 1st year of service: during full or partial incapacity for work due to illness or accident, termination is blocked for a maximum of 30 days.

From the 2nd to the 5th year of service: the blocking period extends to a maximum of 90 days.

From the 6th year of service: the blocking period is a maximum of 180 days.

Cumulation: these are maxima per year of service and per illness or accident event. If completely independent health issues occur in the same year (e.g., a broken leg first, followed by flu months later), new blocking periods arise for each event.

C. Pregnancy and maternity (lit. c) The protection: for the entire duration of a pregnancy and for the 16 weeks following the birth, the female employee enjoys absolute protection against terminations issued by the employer.

Particularity: if a miscarriage occurs after the 12th week of pregnancy, a time-limited protection period likewise applies according to case law.

D. Aid operations abroad ordered by the authorities (lit. d) The protection: taking part in an aid operation abroad ordered by the competent federal authority is likewise covered by the prohibition on termination.

3. The critical difference: termination before the illness versus during the illness

An extremely common error in employment law concerns the chronology between the termination being given and incapacity for work beginning. Here the exact date decides the legal consequences.

Scenario A: the termination arrives BEFORE the illness begins The legal position: if the employee duly receives the termination letter in their letterbox and only becomes ill or has an accident afterwards (during a notice period that is already running), the termination itself remains valid.

Interruption of notice & extension to month-end (Art. 336c paras. 2 & 3 CO): the notice period is suspended for the duration of the illness (at most until the maximum blocking period is reached) and resumes running only after recovery.

The month-end effect (Art. 336c para. 3 CO): if the newly calculated end of the notice period does not coincide with a regular termination date (which is usually the end of a month), the employment relationship is automatically extended to the next following month-end!

Practical example: the employment relationship is terminated on 30 June as of 30 September (a 3-month notice period). In August, the employee falls ill for 10 days. The period is suspended for 10 days and would mathematically end on 10 October. However, because the contractual termination date is the end of the month, the contract extends until 31 October. The employee thus gains a full extra month!

Scenario B: the termination arrives DURING an illness that is already under way The legal position: if the employee is already signed off sick at the time the termination is received (and probation has passed), the prohibition on termination applies.

Nullity: the termination is void and produces no legal effect. The employer must serve the termination again after the blocking period expires or after full recovery for the notice period to even begin running.

4. Exceptions to the blocking period: when termination is possible despite illness

No rule without an exception. Swiss law provides for a few but significant constellations in which protection against termination is set aside:

During the probation period (Art. 335b CO): during the statutory or contractual probation period (at most the first three months), no protection against termination applies for illness, accident or pregnancy! The employer can terminate at any time during this period subject to the 7-day notice period, even if the employee is incapacitated for work.

Summary dismissal (Art. 337 CO): where a serious ground for summary dismissal exists (proven fraud, theft or assault), blocking periods do not apply. The employment relationship is dissolved with immediate effect.

Mutual termination agreement: employer and employee can agree to terminate the employment relationship amicably at any time via a termination agreement, provided it does not constitute an abusive circumvention of mandatory employee protections.

5. A legally sound approach and documentation

Anyone confronted with a situation in which blocking periods play a role has to document rigorously and seamlessly:

Submit medical certificates immediately: a medical certificate is the legal foundation. It should be submitted without delay to the employer, confirming the degree of incapacity for work (e.g., 100%) and the expected duration (without a diagnosis!).

Verify the receipt date of the termination: the exact time of receipt (receipt principle) in the letterbox determines whether Scenario A (suspension) or Scenario B (nullity) applies.

Recalculate the end date to month-end: where illness arises during the notice period, the definitive leaving date must be precisely calculated taking the extension to the next month-end into account.

Conclusion: check your legal protection and manage termination processes on time

The rules around blocking periods under Art. 336c CO are a minefield in Swiss employment law. An unintentional formal error or ignoring a medically certified illness when giving notice leads to drawn-out employment disputes, back payments of salary and unfortunate delays.

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