AP and dismissal: protection period, postponement of the period and rights of the employer and the employee

Introduction

A dismissal handled “as usual” can become a legal and social risk as soon as a work incapacity enters the equation. In Switzerland, certain periods protect employees against being dismissed “at the wrong time” (termination in an inopportune moment), and an incapacity occurring during the notice period can suspend this period and postpone the end date of the contract. For an SME, the issue is not only legal: it is a matter of HR-CFO management, with impacts on salary, disability insurance, and the employee-manager relationship.

Reading promise: by the end, you will know how to decide (can we cancel, when, and how), document (what evidence and what steps), and follow (what schedule and what checkpoints) without improvisation.

1) Basic framework: notice period and end-of-contract “term”

1.1 Legal deadlines (if your contract does not stipulate otherwise)

After the probationary period, the Swiss Code of Obligations stipulates notice periods ending at the end of a month (unless otherwise provided in the contract). The State Secretariat for Economic Affairs (SECO) summarizes these periods and refers to Article 335c of the Swiss Code of Obligations: one month during the first year of service, two months from the second to the ninth year, and three months from the tenth year onwards.

Governance point: before making any decision, clearly define in writing the "applicable deadline" (contract, collective bargaining agreement, regulations) and the "end date" (often end of month). This deadline/end date combination then determines any postponement.

1.2 Trial period: beware of extensions

During the trial period, the notice period is 7 days (general rule), but SECO also reminds that if work is interrupted (illness, accident, legal obligation), the trial period can be extended accordingly (art. 335b CO).

For an SME, this can shift the “before/after trial period” boundary and therefore completely change the protection regime.

2) Protection period: when a dismissal is void and when the period is suspended

2.1 “Termination at an inopportune time”: the principle

After the probationary period, the employer cannot terminate the contract during certain protected periods (compulsory service, illness/accident, pregnancy and the weeks following childbirth, etc., according to Art. 336c of the Swiss Code of Obligations). The State Secretariat for Economic Affairs (SECO) provides a fact sheet with an extract from the Swiss Code of Obligations, including Art. 336c and its effects.

Two key practical consequences (to be distinguished):

• Leave given during a protected period: it is null and void (as if it had not been given).

• Notice given before the protected period, but whose notice period is still running when the protection begins: the notice period is suspended, then resumes after the end of the protection.

2.2 Protection in case of illness or accident: durations to know

Article 336c of the Swiss Code of Obligations (CO) provides for periods of protection related to incapacity for work (illness or accident, without fault of the employee). The State Secretariat for Economic Affairs (SECO) adopts the durations of these periods (typically 30 days during the first year of service, 90 days from the second to the fifth year, and 180 days from the sixth year onwards).

These are calendar markers: they structure your “now or later” decision, and especially your follow-up (how many days of protection have already been used up, when does the deadline start again).

2.3 Deferral to the next term: the “end of month” mechanism

Even when the notice period restarts, the end of the contract must often fall on a specific date (e.g., the end of a month). If this date does not coincide with the exact end of the restarted notice period, Article 336c of the Swiss Code of Obligations provides for an extension until the next scheduled date.

For piloting: do not communicate an “release date” until you have recalculated (i) suspension, (ii) resumption, (iii) alignment at the end.

3) AP (loss of earnings due to illness) and salary: who pays what during and after the leave

3.1 Maintaining salary: the legal framework and SME practice

SECO recalls the principle of art. 324a CO: in case of illness, the employer must pay the full salary for a period determined according to the year of service, if the relationship has lasted more than three months (or has been concluded for more than three months).

Since these durations can depend on scales and situations, SMEs benefit from thinking in terms of “process”:

• Check the contractual basis/collective bargaining agreement

• Check the AP insurance scheme (daily allowances) and its conditions

• Trace who pays what, from when, and on what documentary basis (certificate, announcements, etc.)

3.2 Effect of dismissal on AP: point of attention

In many organizations, “AP” refers to sickness loss of earnings insurance (daily allowances). The rules vary depending on the contract, but the risk of mismanagement is constant: confusing labor law (validity of leave, suspension of notice period, termination of contract) and insurance logic (declarations, conditions, coordination).

Governance recommendation: create a single file for “HR + Finance + AP insurer” including:

• status of the employment contract (term, suspension, recalculated end date)

• status of benefits (employer salary vs. AP)

• Missing documents and upcoming decisions

4) Rights and obligations: employee and employer, without grey areas

4.1 Employee side: certificates, information and cooperation

The official portal ch.ch reminds us that in case of illness or accident, the employee continues to receive his salary for a certain period of time and cannot be dismissed during this period of protection.

In practice, the employee must be able to demonstrate their incapacity (medical certificate). For an SME, the best approach is to implement the following guidelines:

• when and how the certificate is transmitted

• how you handle successive certificates (continuity, rates, restrictions)

• How you organize a factual (non-intrusive) exchange about resumption, adaptations, and return to the position

4.2 Employer's side: decide, provide justification if requested, and secure the procedure

SECO reminds that a party may request the written reasons for the dismissal (art. 335 para. 2 CO).

SECO also distinguishes between the concepts of abusive dismissal (Art. 336 et seq. CO) and termination at an inopportune time (Art. 336c CO), with different effects: in the first case, the dismissal may give rise to compensation; in the second, the dismissal given at the wrong time is void or the time limit is suspended.

Methodological point: your security comes less from a “perfect sentence” than from a coherent, dated, traceable file.

5) Two mini case studies (SMEs): pilot scenarios

Mini-case 1: Leave granted, then sick leave during the notice period

Situation: You notify an ordinary leave of absence. Two weeks later, the employee submits a certificate of incapacity for work.

Piloting:

1. Check if the incapacity triggers a period of protection (art. 336c CO) and therefore the suspension of the time limit.

2. Recalculate the new end date: deadline suspended, then resumed, then possible postponement to the next term (end of month).

3. Separate the flows: HR communication (contract status) and payroll/employee benefits flow (who pays what, which forms). Legal basis for salary: Art. 324a of the Swiss Code of Obligations according to the State Secretariat for Economic Affairs (SECO).

4. Document each step (receipt of leave, receipt of certificates, recalculation, communication to the employee).

Mini-case 2: long stop, “we wait for the protection to pass”

Situation: The employee is on extended sick leave. Management wants to "wait until the end of the protected period" before terminating the contract.

Piloting:

1. Keep a protection counter (per year of service) and a log of periods of incapacity to avoid scheduling errors. Reference: mechanism art. 336c CO as summarized by SECO.

2. Schedule a monthly HR-CFO check-in: medical status (at the authorized level), AP status, cost status, legal status (applicable deadline).

3. Prepare a non-confrontational communication: “legal framework + next steps” rather than “definitive date” until the calculation is stabilized.

Guidelines and checklist

Decision-making checklist (executive, CFO, HR)

1. Contract/CCT: applicable notice period and term (end of month or other) according to art. 335c CO if statutory regime.

2. Probationary period status: is it extended by an absence (illness/accident) according to art. 335b CO?

3. Protection 336c CO: is there a period of protection in progress (illness/accident, pregnancy, service, etc.)?

4. Effect on the notice: nil (if given during the protection) or time limit suspended (if protection occurs during the time limit).

5. End recalculation: restart of the deadline + postponement to the next deadline if necessary.

6. Salary and AP: who pays what, on what basis, and which announcements must be made (HR/finance). Basis: art. 324a CO according to SECO.

7. Communication: a single, factual, dated, validated message (HR + management).

8. File: centralize the documents, version, record the dates of receipt.

Box: What needs to be documented

• Employment contract, amendments, applicable collective bargaining agreement/regulations (time limits and deadlines)

• Proof of notification of termination of employment (date of receipt)

• Medical certificates (dates, rates, duration, restrictions if indicated)

• History of absences and returns (calendar)

• Written recalculation of the deadline (suspension, resumption, expiry)

• Exchanges with AP insurer (if in place) and documents transmitted

• Letters and communications to the employee (dated versions)

Control panel (without invented figures)

Subject: What the framework says about SME risk; Decision to be formalized

Deadline/Term: Deadline according to Art. 335c of the Swiss Code of Obligations if statutory scheme applies, often ends at the end of the month. Incorrect end date, dispute. “Applicable deadline” validated by HR/CFO.

Protection against early termination (Art. 336c CO) Null notice or suspended notice period not anticipated Internal recalculation rule + control

Salary/AP Maintenance of salary in case of illness (Art. 324a CO) according to SECO Double payment, coverage gap, delays Documented payroll/insurance process

Motivation. Written justification possible upon request (Art. 335 para. 2 CO). Awkward reason, risk of abuse. Validated response template.

Common mistakes and how to avoid them

1. Confusing nullity and abuse

A dismissal at an "inopportune time" may be invalid; an "abusive" dismissal, however, gives rise to claims (compensation) according to the applicable regulations. SECO distinguishes between these categories.

2. Announcing an end date before recalculating the suspension and term

The suspension of the time limit and the postponement to the end are automatic (art. 336c CO).

3. Leave the file “in the manager’s mailbox”

Sick leave and vacation time are governance issues. Centralize and version control.

4. Treat AP as a separate topic

Payment (salary/AP) must follow the contract status. Legal basis for sick pay: SECO article 324a of the Swiss Code of Obligations.

5. Documenting the receipt of leave and certificates too late

In practice, the dates of receipt structure everything. Keep simple and clean proof.

Questions to ask your insurer/broker (10 questions)

1. Does our AP (loss of earnings due to illness) contract stipulate specific reporting obligations and deadlines in the event of a work stoppage during a leave period?

2. What documents do you systematically require (certificates, employer attestations, medical records)?

3. How are employer salary (art. 324a CO) and AP benefits coordinated in our system?

4. Are there any contractual exclusions or limitations to be aware of to avoid surprises at the end of the contract?

5. In the event of a dispute regarding a certificate, what is the planned process (medical advisor, exchanges, deadlines)?

6. Who is the single point of contact on the insurer's side for a "long-term leave + end of contract" case?

7. What HR information can you receive without violating medical confidentiality?

8. What are the key points to consider when leave is suspended by a protection period (impact on your payments)? Reference mechanism 336c CO via SECO.

9. Do you have a "contract closure" checklist for properly closing an AP file?

10. Can you review with us, once a year, the alignment between HR practices (leave, deadlines) and the AP scheme?

Conclusion

Dismissing an employee in the event of incapacity for work is not "prohibited" in all circumstances, but it is regulated: a protected period (Art. 336c of the Swiss Code of Obligations), suspension and postponement of the notice period, and coordination of salary/supplementary benefits. The best protection for an SME lies in a simple method: manage (deadlines, deadlines, schedule), document (receipts, certificates, calculations), and monitor (monthly meetings between HR and the CFO, and communication with the insurer). A useful next step: standardize an internal "leave + incapacity" form and link it to your supplementary benefits process to improve clarity and responsiveness.