According to the HR handbook at my company the severance payment is 5 months salary. My contract has a 3 month notice period. My company has stated that my 3 month notice is included in my severance, meaning that I won't receive 5 months severance but rather 2 months as 3 would be used during my notice period.
Is this legal? Am I not entitled to my notice period of 3 months regardless of termination and then severance would be on top?
I appreciate any advice and would be glad if someone could point me in the direction where I could get some professional legal advice.
In my contract it is clearly stated it cannot be terminated without 3 months notice. In the HR handbook it says that employees of my level are entitled to 5 months severance with no qualifiers or any additional information other than other packages for different levels.
It’s crystal clear. If you give notice you are entitled to be paid for a period of three months from the end of the month in which you give notice. If you are terminated by your employer then you are entitled to be paid for a period of five months from the end of the month in which you are terminated. As there is no rule stating that you are entitled to anything else 5 months is the maximum amount you will receive.
That's my question too. If you're not, and you can take up other employment immediately, then it's fine. If you are working - or they say you're on gardening leave - then, based on the information you've given us, you're right, you're only getting two months severance pay.
Notice period and severance pay are two completely separate things. Most people just get the former, (which they're expect to work through) not the latter!
If you feel they're wrong, contact a lawyer. It will all be in the wording of the contract.
Of course a severance payment is an additional payment on top of your salary, to compensate losses because of termination. The 3 months notification reason doesn't make sense.
For example, if you would have a 6 months notification period (like many people have), would you get nothing?
I am a Swiss employment lawyer and according to Swiss law there is no obligation of the employer to pay a severance payment after a termination. The only obligation is to pay your salary during the notice period. If as you say the employer agreed to pay a severance payment the wording of such clause is key in order to understand if it is a voluntary payment or an entitlement.