"The freedom of dismissal in Switzerland is a highly valued principle – but it must not be abused to legally marginalise long-serving employees in their older years."
The Swiss labour market is deeply rooted in the principle of freedom of dismissal: in essence, anyone wishing to dismiss an employee does not need a substantive reason. However, to protect older, long-serving employees, the Federal Supreme Court has developed the doctrine of the "increased duty of care" (erhöhte Fürsorgepflicht). Yet, an analysis of recent case law reveals that protection against abusive age-based dismissal in Switzerland is a question of hierarchy and income.
The Increased Duty of Care: What the Law Actually Requires
According to Article 328 of the Swiss Code of Obligations (OR), employers are obliged to respect and protect the employee's personality. From this, the Federal Supreme Court deduces that older employees (in practice, usually from age 58 to 60) with long service records (more than 10 years) enjoy special protection.
If an employer dismisses such a person, they must proceed with care. They must:
- Inform the employee of the intention to dismiss them in good time.
- Hear them out and discuss the situation.
- Actively seek socially acceptable alternatives (e.g., continued employment with reduced hours or in a different role).
Failure to do so renders the dismissal abusive (Art. 336 OR), which can lead to penalty payments of up to six months' salary. In practice, however, Swiss employment law operates as a two-tier system.
Case 1: The Cook and the Protection of the Base Segment (Ruling 4A_117/2023)
A striking example of protection for the base segment is provided by the Federal Supreme Court ruling 4A_117/2023 of May 2023.
A 64-year-old cook, who had been employed at the same restaurant for around 30 years (most recently as deputy head chef), suffered a severe knee condition. Eleven months before his regular retirement, his employer dismissed him. The employer cynically argued that the dismissal was in the cook's interest, so that he could claim daily sickness benefits and unemployment benefits instead of accepting a reduction in salary.
The Federal Supreme Court rejected this argument and ordered the employer to pay punitive compensation of 4.5 months' salary for abusive dismissal. The employer had violated the increased duty of care because they had neither informed nor heard the cook beforehand, nor looked for alternative tasks in the kitchen. This ruling shows that the base segment is well protected in the event of formal errors.
Case 2: The CEO and the Weakening of Protection for High Earners (Ruling 4A_44/2021)
In stark contrast to this is ruling 4A_44/2021. This case involved a 60-year-old CEO who had worked for an incredible 37 years at the same company and was suddenly dismissed. His salary was around CHF 230,000.
The lower court had still classified the dismissal as abusive due to his age and extremely long service. However, the Federal Supreme Court overturned the ruling and declared the dismissal to be completely lawful.
The judges' reasoning is highly revealing:
- In the case of a CEO with far-reaching authority, the employer's interest in the freedom of dismissal carries more weight.
- Continued employment in a subordinate role is, in practice, "simply not feasible" for an executive.
- A duty to issue a prior warning or hold a hearing was explicitly denied for this management level.
The Unvarnished Reality: A Class Society in Court
Comparing these two cases reveals a painful truth: While the 63-year-old tradesperson or cook is protected by the duty to hear and warn, the 61-year-old department head, authorized signatory, or managing director stands on extremely thin legal ice. Above a certain salary and hierarchical level, the employer's duty of care is deemed "not feasible" by the courts.
This forces older professionals into a defensive role. Statistically, those dismissed at an older age find it twice as difficult to find a new job on the Swiss market. The average search duration increases from 140 to over 200 days. Many end up exhausting their unemployment benefits.
PARAT: Independence Instead of Pleading
The takeaway from this legal reality is clear: you cannot blindly rely on statutory protection against dismissal. True security only comes from your own employability and independence.
PARAT was developed precisely for this:
- To help older professionals structure their decades of experience in a modern, ATS-friendly CV design.
- To reduce the administrative stress of job hunting to a minimum through integrated tracking and one-click exports.
- To keep the reins of your own career path in your hands – regardless of whether you are a cook, tradesperson, or CEO.
Bring your documents up to date and maintain full control over your professional future with the PARAT CV Wizard.
