Notice is quickly written but not always valid. Dismissing an ill, pregnant or military-serving employee risks void notice. The Code of Obligations (OR; CO) provides termination protection periods during which employers cannot give notice. This guide explains Art. 336c, grounds, duration and the effects of notice before/during protection.
What protection periods mean
A protection period restricts the timing of termination; the law calls this “untimely termination”. Under Art. 336c, para. 1 CO, the protection applies after the probation period has ended and concerns notice given by the employer. It does not apply during probation. For the rules governing that earlier stage, see Probation.
The decisive point is receipt of notice. SECO explains that notice takes effect only when the other party receives it, and that the terminating party must prove receipt. For a letter, the relevant event is delivery. The protection period answers whether notice can take effect at that time. The separate question of how long employment continues after valid notice is covered in Calculate notice periods.
Protected grounds
Art. 336c, para. 1 CO bars employer notice after probation:
| Ground | Statutory duration |
|---|---|
| Swiss compulsory military, civil-defence or civilian service (a) | During service; if over eleven days, also four weeks before/after |
| Unculpable illness/accident causing full/partial incapacity (b) | 30 days in year 1; 90 in years 2–5; 180 from year 6 |
| Pregnancy (c) | During pregnancy and 16 weeks after birth |
| Extended maternity leave under Art. 329f, para. 2 (cbis) | Until extended leave ends |
| Art. 329f, para. 3 additional leave after other parent’s death (cter) | From leave start through last leave day, maximum three months after (c) protection ends |
| Art. 329i leave caring for seriously ill/injured child (cquater) | While entitlement exists, maximum six months from reference-period start |
| Art. 329gbis leave after mother’s death (cquinquies) | During leave |
| Employer-approved overseas aid service ordered by competent federal authority (d) | During participation |
For pregnancy, the statutory wording links protection to the pregnancy itself, rather than to notification of the employer (Art. 336c, para. 1). For military service, note the distinction in the table: according to SECO, foreign military service does not qualify for this protection.
Illness/accident: 30, 90 or 180 days
Three key points:
- No fault: protection covers unculpable incapacity only.
- Full/partial: partial incapacity also qualifies (Art. 336c, para. 1(b)).
- Service year: 30/90/180 days as above. Law does not expressly resolve illness just before a service-year transition; seek advice.
According to SECO, protection starts when the illness or accident causes incapacity for work. It ends when the person is fit for work again, or when the applicable maximum duration is reached. The stated maximum is therefore a limit on protection, rather than a period that necessarily runs in full after recovery.
Multiple illnesses: each new independent illness/accident starts new protection (BGE 120 II 124). Relapses from the same cause do not repeatedly restart it (SECO), otherwise employment could become virtually unterminable.
Void notice or suspension
Art. 336c, para. 2 CO distinguishes:
- Notice during a protection period: the notice is void. According to SECO, the employer must give notice again after the protection period has ended or the employee has recovered. Without fresh notice, the employment relationship continues as normal.
- Notice before a protection period begins, with the notice period still running: the original notice remains valid. However, the running of the notice period is suspended. It resumes only after the protection period has ended.
Paragraph 3 adds a further step where the employment relationship has an agreed end date, such as the end of a month. If the resumed notice period finishes between such dates, extend it to the next agreed end date. SECO points out that this can cause one week of illness to extend employment by a whole month.
To establish the relevant period, SECO describes a calculation backwards from the termination date, following Federal Supreme Court practice. If incapacity for work falls within the actual notice period, that period is extended by the days of incapacity. If the incapacity falls entirely before the actual notice period, there is no extension. The timing of the incapacity therefore matters as well as its duration.
Where protection does not apply
- Probation: Art. 336c applies only afterwards.
- Employee resignation: employees giving notice cannot invoke protection; SECO also says this for mutual termination.
- Summary dismissal: courts may never accept unculpable incapacity as good cause under Art. 337, para. 3. Illness does not justify immediate dismissal.
Untimely employee notice (Art. 336d)
Employees face a narrow restriction after probation: they cannot resign while their supervisor/employer performs Art. 336c, para. 1(a) service if they can and must cover that person’s functions. Art. 336c, paras. 2–3 applies correspondingly.
Abusive dismissal is different
Notice outside protection is not automatically lawful. Art. 336 lists abusive grounds such as retaliation for good-faith employment claims or union membership. Unlike protected-period notice, it is not void; compensation follows. Courts set up to six months’ salary, or two for collective dismissal without required consultation (Art. 336a, paras. 2–3). Claimants must object in writing before notice expires and sue within 180 days of employment ending (Art. 336b).
Practical example: Muster Elektro GmbH
Fictional Muster Elektro GmbH has 14 employees.
Case 1: protected-period notice. Ms Keller joined 1 March 2023; November 2026 is year four, 1 March 2026–28 February 2027. Certified ill from Monday, 2 November, she would receive notice Friday, 13 November 2026: day twelve, within 90-day protection, so void. Maximum protection ends 30 January 2027, counting 2 November as day one. If fit again Friday, 20 November 2026, protection ends on recovery; notice is possible from 20 November absent another ground.
Case 2: illness after notice. Mr Meier joined 1 April 2024, year three. Receipt Friday, 30 October 2026; statutory two-month month-end notice (Art. 335c, para. 1, no variation) ends Thursday, 31 December. Actual notice spans 1 November–31 December. Ill Monday, 2–Friday, 20 November: 19 calendar days wholly within notice. Add 19 to Tuesday, 19 January 2027, then extend under Art. 336c, para. 3 to 31 January. Nineteen is below year-three’s 90-day maximum.
Checklist
- Probation finished
- Employer notice planned
- No illness/accident, including partial, pregnancy, service or Art. 336c leave at receipt
- Service year and 30/90/180-day maximum established
- Receipt date provably recorded
- Post-notice illness: resumed period/end-date extension recalculated
- Void notice reissued after protection
- Payroll leaving date/process adjusted
How KMU | base helps
KMU | base is also available in French, Italian and English.
HR | base provides displays/warnings; you assess validity. It does not derive protection automatically from absences.
1. Display. Personnel › Employees › Open person › Overview, Notice periods, shows possible illness/accident protection: 30/90/180 days solely by service year. It does not assess actual illness, pregnancy/service or automatically extend notice.
2. Warning. More actions (three dots), Record leaving: enter actual receipt. Termination by employer after probation shows a red Art. 336c warning with maximum days. It omits next-end-date extension (para. 3), covers illness/accident, and does not represent pregnancy/military service. Mutual agreement/employee notice shows no warning.
3. Checklist. Employer notice adds HR item “Check protection periods (CO 336c)”, whose guidance also mentions pregnancy/military service.
4. Revoke leaving. If leaving is cancelled, e.g. mutual withdrawal, choose Revoke leaving date in the same menu with mandatory reason. Open checklist items lapse; completed history remains; the timeline records revocation. Law does not regulate withdrawal; practice uses mutual agreement. Software revocation does not replace agreement and is not transferred to linked payroll; notify payroll yourself.
Try the Demo or a test account; see Prices. Questions? See the Contact page.
Sources
- Code of Obligations (OR, SR 220), Art. 335, 335b, 335c, 336, 336a, 336b, 336c, 336d and Art. 337, para. 3, as at 1 October 2026: Fedlex (German original), accessed 26.10.2026.
- SECO: termination FAQ (protection periods, calculation, effective receipt): seco.admin.ch (in German), accessed 26.10.2026. SECO describes this as non-binding guidance.
- Federal Supreme Court, BGE 120 II 124, First Civil Division judgment of 19 April 1994 (Art. 336c, para. 1(b) CO): bger.ch (in German), accessed 26.10.2026.
This guide does not replace legal or tax advice. Information as at 26 October 2026.