When a working relationship comes to an end, the employer and employee often have an interest in parting ways by mutual agreement rather than through a traditional dismissal. departure agreement in Switzerland, Also known as a termination agreement or convention, it allows for the final date, the compensation, and the conditions of exit to be set together. However, it must be balanced, otherwise it can be challenged.
What is a departure agreement?
It is an agreement whereby the employer and the employee terminate the employment contract by mutual consent, on a date of their choice. Unlike dismissal, neither party terminates the contract alone: the end of the contract is negotiated.
No form is required by law, but a written document signed by both parties is strongly recommended. It avoids misunderstandings and serves as proof in the event of a dispute.
The key rule: reciprocal concessions
Under Swiss law, the employee may not, during the duration of the contract and the month following its termination, waive claims arising from mandatory provisions of the law or a collective agreement (Art. 341(1) CO).
In practice, a departure agreement is only valid if it contains the following elements: reciprocal concessions of comparable importance. If the employee waives his leave entitlement or his protection in case of illness without any real compensation, the agreement may be invalidated by a court.
The points to negotiate
- The date of the end of the contract, to be compared with the legal leave period: one month during the first year of service, two months from the second to the ninth year, three months thereafter (Article 335c of the CO), unless otherwise contractually stipulated.
- The liberation from the obligation to work during the remaining period, to devote himself to his job search.
- The severance pay. The law only provides for one in specific cases (an employee aged 50 or over with at least 20 years of service, Article 339b of the CO). Beyond that, the amount is entirely negotiable.
- Unused holidays, overtime and bonus : to be paid or to be paid off.
- The work certificate (Art. 330a CO): Its wording can be agreed upon in the agreement.
- The non-competition clause Maintenance, reduction or renunciation.
- The accompanying measures Outplacement, training, internal and external communication of the departure.
The traps to avoid
- Losing your protection against dismissal. During an illness or accident, the employer may not dismiss an employee during the first 30 days of employment, 90 days from the second to the fifth year and 180 days from the sixth year onwards (Article 336c of the CO). A severance agreement is not subject to these periods: it must be taken into account during the negotiation process.
- Penalties for unemployment. The board may impose suspension periods if it considers that the employee has lost their job through their own fault (Article 30 of the LACI). It is therefore useful for the agreement to specify that the termination of employment occurs at the initiative of the employer.
- Signing too quickly. Take the time to read the agreement and have it reread. A contract signed under pressure, without a period of reflection, is more easily contested.
Why negotiate with the help of a mediator
The discussion about leaving is fraught with emotions on both sides. A mediator, a neutral third party, helps each person formulate their real needs, rebalances the exchanges, and enables an agreement to be reached within a few weeks, without a judicial procedure.
For the employer, it is the guarantee of a safe departure and a preserved image. For the employee, it is the assurance of fair conditions of exit. Discover our support for Negotiating a dismissal in Switzerland.
Frequently asked questions
Can one be forced to sign a departure agreement?
No. A contract requires the free agreement of both parties. The employee can refuse; the employer then retains the option to terminate the employment contract in accordance with the leave period and legal protections.
Is the severance pay subject to social security charges?
This depends on its nature and amount. Have this point checked by your trustee or advisor before signing.
Do I need an attorney in addition to the mediator?
The mediator facilitates the negotiation; he does not represent any party. It is useful for everyone to have the agreement read over by a legal advisor before signing, especially for large sums of money.
Preparing a separation in good conditions
A well-negotiated departure agreement allows everyone to move on calmly. Contact our team for a first confidential exchange, whether you are an employer or an employee.
To go further: check out our page Negotiating a dismissal in Switzerland, Our support in Professional mediation and our advice for one Salary negotiation successful.