Ladies, when you have an employment contract, you have rights, particularly concerning protection against dismissal during inconvenient times, specifically during the entire period of pregnancy and after childbirth (Article 336c of the Code of Obligations). This protection applies after the probation period, that is, to indefinite contracts as well as fixed-term contracts that have lasted more than ten years (Article 334 of the Code of Obligations).
In Swiss law, the general principle is the freedom of each party to terminate the employment contract while respecting the legal notice periods. However, there is protection against so-called "inconvenient" dismissals. Indeed, after the probation period, the employer cannot terminate the employment contract during the entire period of pregnancy, that is, from the first day of pregnancy until the day of childbirth, and for the sixteen weeks following childbirth (Article 336c para. 1 letter c of the Code of Obligations).
This protection constitutes a minimum obligation that the employer must respect towards all pregnant employees (Article 362 para. 1 of the Code of Obligations), so the protection period can be extended but not reduced.
A pregnant employee benefits from protection against inconvenient dismissal even if she has not informed her employer of her pregnancy or if she was unaware of being pregnant. Indeed, the only determining factor for benefiting from the protection against such dismissal is the presence of pregnancy.
Knowledge of the pregnancy does not constitute a condition for the applicability of the protection granted by Article 336c para. 1 letter c of the Code of Obligations (Judgment 4A_594/2018 of May 6, 2019, para. 5.1.1 and cited references).
To determine the effects of a termination given at an inconvenient time, it is necessary to distinguish between two situations with different consequences. First, if the termination of the employment contract is notified during the protection period, that is, during pregnancy, it is considered null and void, meaning it has no effect. In this case, the employer must renew their termination request after the expiration of the protection period, i.e., at the end of the sixteen weeks following childbirth. Second, if the employer terminates the contract before the employee is pregnant for a date after the beginning of the pregnancy, the notice period is suspended during the entire protection period afforded to the pregnant employee (Article 336c para. 1 letter c and para. 2 in fine), meaning that the notice period resumes running from the end of the protection period, i.e., from the 17th week after childbirth.
In any case, such protection ceases when the employment contract is terminated with immediate effect for just causes, when the termination occurs during the probation period, when the parties terminate the contract by mutual agreement, and finally, when the employment contract is for a fixed term.
Sources: Maternity – Protection of Workers, in: Swiss Confederation, Federal Department of Economic Affairs, Education and Research; Rémy Wyler and Boris Heinzer, Labor Law, 3rd edition, Bern 2014, p. 679 and following.
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