Introduction
Tensions at work, or even mobbing, can have serious repercussions on employees’ health and team dynamics.
However, a recent decision by the Federal Court clarifies the limits of protection against dismissal: when incapacity for work stems exclusively from the job or the professional environment, the protection provided by the Code of Obligations does not automatically apply.
This clarification is useful for both employers and employees in an area where human and legal issues intersect.
The point of law
In its ruling of March 26, 2024 (1C_595/2023), the Federal Court ruled that an employee whose incapacity to work is solely related to their position or professional environment does not automatically benefit from the protection against dismissal provided for in Article 336c of the Swiss Code of Obligations.
In other words, if an incapacity arises from a professional conflict or a situation of mobbing, but the person remains capable of performing another job in a different context, the dismissal may be considered valid.
This distinction between “job-related” incapacity and “general” incapacity clarifies the scope of legal protection. However, the Court reiterates the duty to protect the employee’s personality (Art. 328 CO), the violation of which could render a dismissal unfair.
Key points to remember
- The protection afforded by Art. 336c CO only applies in cases of general incapacity.
- If the incapacity is limited to a specific job or environment, the dismissal remains valid.
- The employer must prevent and deal with any instances of workplace bullying.
- The employee must document the facts and ensure that medical certificates are accurate.
In practice
This case law illustrates the importance of accurately assessing the causes of incapacity for work and the role of the work environment in its occurrence.
It also reminds companies of the need to implement policies for the prevention and management of harassment.
Conclusion
Our firm assists employers and employees in managing mobbing situations, including through internal investigations to establish the facts and clarify the situation.
Jean-François Cuénod, a member of our firm, is specifically responsible for these mobbing investigations, ensuring impartiality and rigor in the process.
For any questions relating to the management of mobbing, the protection of employees, or the validity of a dismissal, our firm is at your disposal to advise you and intervene if necessary.
Reference:
Federal Court, judgment 1C_595/2023 of 26 March 2024