Dismissal during sick leave: the notice period is suspended, it is not always void

An employer cannot always dismiss someone who is off sick. Sometimes they can. And a notice period that has already started is not cancelled for that reason: it is suspended. That is what article 336c of the Code of Obligations says, in the text in force on 1 October 2026.

Only after probation

The protection in article 336c starts once probation has ended. During probation the employer may terminate on seven days' notice, even if the employee is unfit for work. The reason can still be challenged under article 336, for example if it is discriminatory. The Federal Supreme Court accepts that the abusive-dismissal rule also applies during probation (BGE 136 III 96).

Illness and accident: 30, 90 or 180 days

Article 336c paragraph 1 letter b covers total or partial incapacity for work caused by illness or accident that is not the employee's fault. The count follows the year of service, from the start of the contract, not the calendar year.

• 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

Days of incapacity in the same year of service are added together. The next year of service starts a new count. The statute covers both total and partial incapacity. It does not set a single formula for counting days when the incapacity is only partial: that depends on the case.

An illness that continues after these periods does not extend the protection. The employer may then give notice, observing the ordinary notice period.

This protection does not say whether salary is due during the absence. Continued pay follows article 324a, a daily-allowance insurance, or an agreement. Those are two separate questions.

Notice given during the period is void

Notice served during a protected period is void (art. 336c para. 2, first sentence). The contract continues. The employee should write without delay that they treat the notice as void and that they remain available to the extent their health allows. Letting the announced end of the contract pass makes a challenge harder.

This nullity does not follow the abusive-dismissal procedure. The written objection and the 180-day period in article 336b concern compensation for abusive dismissal, not nullity under article 336c.

Notice given earlier is suspended

If notice was given before the illness, and the notice period has not expired when the protected period begins, the notice is not void. The period is suspended. It only continues to run after the protected period ends (art. 336c para. 2, second sentence).

Where the contract must end on a fixed term, in practice the end of a month, and the end of the resumed period does not fall on that term, the period is extended to the next term (art. 336c para. 3).

This is not an abusive dismissal

Article 336 looks at the reason for the notice: an aspect of personality with no link to the work, the exercise of a right, retaliation after a claim made in good faith, trade-union activity, among others. That notice remains valid. It may lead to compensation which the court sets in the light of the circumstances, up to six months' salary (art. 336a). The employee must object in writing at the latest by the end of the notice period, then sue within 180 days after the contract ends, or the claim is forfeited (art. 336b). Asking for the reasons, or expressing surprise, is not enough: the writing must show that the employee challenges the notice.

Notice can therefore be void under article 336c, or valid but abusive under article 336. The two questions can also arise one after the other. If the court finds that the protected period had already ended, compensation under article 336 still requires a written objection made in time. Mixing the two regimes means missing the right deadline.

Pregnancy, service and leave to care for family

Letter c protects during pregnancy and for sixteen weeks after the birth. That is not maternity leave under article 329f, which is a right to at least fourteen weeks of leave after the birth.

Other letters, in the text of 1 October 2026, cover specific types of leave.

• Letter c bis runs until the end of maternity leave extended because the newborn is in hospital (art. 329f para. 2).
• Letter c ter covers the additional leave in article 329f paragraph 3, where the other parent dies within six months of the birth. Protection runs from the start of that leave to the last day taken, and for at most three months after the end of the protection in letter c.
• Letter c quater covers leave to care for a child whose health is seriously impaired by illness or accident (art. 329i, fourteen weeks at most). Protection lasts while that right exists, and for at most six months from the day the framework period starts.
• Letter c quinquies covers the other parent's leave where the mother dies on the day of the birth or in the fourteen weeks that follow (art. 329g bis).
• Letter a covers compulsory military service, civil protection or civilian service. The four weeks before and after are added only if that service lasted more than eleven days.
• Letter d covers a foreign aid service ordered by the federal authority, with the employer's consent.

An employee should tell the employer about a pregnancy during the notice period. Announcing it only after the contract has ended weakens the chance of invoking nullity.

What these rules do not decide

They apply to a private-law employment contract. Public-sector staff and some collective agreements follow a different regime. They do not say whether an incapacity is the employee's fault. They do not, in the parties' place, add up a series of certificates for partial incapacity. The contract, the start date and the certificates remain decisive.

Frequently asked questions

• Can an employee in Switzerland be dismissed while off sick? Yes, during probation, and yes once the article 336c period has ended. No, if notice is served during that period: it is then void.
• Is notice void as soon as illness falls inside the notice period? No. If it was given before, the period is in principle suspended, then it resumes.
• Is six months' compensation automatic? No. It concerns abusive dismissal under article 336, the court sets it within that cap, and it requires the written objection in article 336b.
• What should be gathered before asking the question? The notice, the contract, the start date, the medical certificates and any letters already sent.

Avocados AI's Basic plan costs CHF 4.99 a month, the price of a coffee. It is there to organise those documents and prepare the questions. It does not replace a lawyer's review of the file. The Swiss employment law guide sets out the framework of the contract, the notice period and dismissal.

Sources

Code of Obligations, articles 324a, 329f, 329g bis, 329i, 336, 336a, 336b and 336c, text in force on 1 October 2026, checked on Fedlex on 17 October 2026. Only the official publication is authoritative.