Termination During the Probation Period – What Employees Need to Know
The probation period offers less protection, but not none at all. We explain which rules apply and when a dismissal during probation is abusive.
Termination During the Probation Period: Your Rights
The probation period allows both sides to get to know each other. Yet legal rules apply during this phase as well.
Legal Basis
Under Art. 335b of the Swiss Code of Obligations (CO), the following applies:
- Duration: The first month of employment, unless otherwise agreed
- Contractual extension: May be extended to a maximum of three months
- Notice period: Seven calendar days, unless otherwise agreed
- Statutory extension: Where the probation period is effectively shortened by illness, accident or the performance of a legal obligation not voluntarily assumed, it is extended accordingly (Art. 335b para. 3 CO) — so it does not necessarily end on the agreed date
When Is a Dismissal During Probation Abusive?
Art. 336 CO sets limits even during the probation period. A dismissal may be abusive in particular in cases of:
- Discrimination: Dismissal on grounds of gender, origin or religion
- Retaliatory dismissal: Because you asserted legitimate claims arising from the employment relationship
- Pregnancy: Legally problematic even during probation
- Union membership: Not a permissible ground for dismissal
No Protection Period in Case of Illness
Important: The protection against dismissal during illness (Art. 336c CO) does not apply during the probation period. The employer may therefore give notice even while you are ill.
Overtime and Holiday Entitlement
Check outstanding overtime and holidays when you leave. Whether they turn into a payment claim is not the same in every case:
- Overtime: With the employee's agreement it may be compensated by time off of at least the same duration. If it is not compensated and nothing else has been agreed in writing, pay with a supplement of at least one quarter is owed (Art. 321c CO). Contracts often exclude the supplement or contain a settlement clause — it is worth reading the contract.
- Holidays: They must in principle be taken in kind and may not be paid out during the employment relationship (Art. 329d para. 2 CO). Whether a monetary claim remains at the end depends, among other things, on whether taking them within the remaining notice period was still possible and reasonable.
- Employment reference: You are entitled to one in any event (Art. 330a CO) – even for a short period of employment. See employment law.
Practical Points for Employees
- Written form: Ask for the dismissal in writing
- Check the date: The seven-day notice period starts on the day after receipt
- Request a reference: You are entitled to one in every case
- Seek advice: If you suspect the dismissal is abusive
How We Support You
We review the lawfulness of your dismissal and assert your claims against the employer. Arrange an initial assessment if needed.
This article provides general information and does not replace legal advice in individual cases.