What makes a termination invalid?

Even minor formal errors can render a termination legally ineffective—and employees scrutinise them closely, given the sensitivity of the subject. Common mistakes include:

1. No justification: While an ordinary termination doesn’t legally require a reason, one should be provided upon request. A summary dismissal must include a justification—and only valid in cases of serious misconduct such as theft, breach of trust, or gross negligence. In some cases, compensation is required.  
2. Ignoring notice periods: Employers must respect contractual or statutory notice periods. Failure to do so delays the termination date.  
3. Terminations during protected periods: Termination during protected periods—such as pregnancy, the first 16 weeks after childbirth, military or civil service, or illness—is not permitted and therefore invalid.  
4. Discrimination: Terminations based on protected characteristics (e.g., gender, religion, age) are abusive and may result in legal action and claims for compensation.  

Does a warning play a role in the termination process?

A formal warning (Abmahnung) is vital in pointing out misconduct and giving the employee an opportunity to correct their behaviour. It warns that continued misconduct may result in termination and serves as documented evidence if the case proceeds. Though not legally mandatory, it should contain:

1. A precise description of the misconduct
2. Reference to violation of contractual obligations
3. A request to cease the misconduct and comply with the contract
4. A warning outlining potential legal consequences, including termination

If the misconduct recurs after the warning, this may justify a termination for cause.

What makes a termination legally effective?

To ensure a termination is binding and irreversible, the following should be observed:

1. Clear documentation: All reasons leading to the termination should be recorded as potential evidence. Although not legally required, written termination is strongly advisable.  
2. Legal advice: In cases of doubt, consult a lawyer to avoid mistakes and ensure all legal requirements are met.  
3. Respect notice periods: Confirm that the notice period has been correctly observed.  
4. Professional communication: Transparent, respectful communication with the employee helps avoid misunderstandings and ensures a smoother process.  
5. Avoid discriminatory motives: Ensure all reasons for termination are objective and well-founded. In Switzerland, ordinary terminations generally do not require justification—but must not be discriminatory.  

Careful preparation minimises legal complications

As you can see, several legal aspects must be considered before terminating an employee. Seeking legal guidance is strongly recommended. While Refline may not provide legal advice on terminations, our intelligent e‑recruiting software ensures efficient and cost-effective replacement of open positions. Try our live demo or contact us for more information.