Dismissal during sick leave: What does the protection period actually entail?

Can you dismiss an employee on sick leave - or is the employee protected against dismissal for 12 months after being on sick leave? Many employers are unsure of what the protection period actually entails. Here's an overview of when dismissal is possible and what you need to have in place before you consider dismissing an employee on sick leave.   

Protection period: 12 months with protection against dismissal

Dismissal due to long-term sick leave is a recurring issue in the labour market. As many people know, employees are protected against dismissal due to sickness absence for the first 12 months they are on sick leave. This is called the protection period and follows from section 15-8 of the Working Environment Act.

However, the protection period only applies to dismissals due to absence due to accident or sickness. If the termination is due to circumstances on the part of the employer, such as downsizing, it is perfectly legal to dismiss the employee on sick leave, provided that all other requirements for dismissal are met. In such situations, the employer should ensure good documentation and a good process that clearly shows what the basis for the dismissal is.

It is the employer who has the burden of proof that the dismissal is due to downsizing and not the employee's sick leave. This is because a dismissal that takes place during the protection period must be considered to be due to the sickness absence unless something else is made highly probable.

The protection period - when has 12 months actually passed?

If an employee is on continuous sick leave for more than 12 months, the employee is no longer protected against dismissal. The employer will then be able to dismiss the employee on the basis of the long period of sick leave as long as the dismissal is in line with the general rule in section 15-7 of the Working Environment Act.

For many employers, however, it is not an unknown issue that an employee on long-term sick leave returns to work before 12 months have passed and is then on sick leave again after a short time. Can the employer proceed to dismissal in such cases?

The starting point is that a new protection period runs if the employee is on sick leave again after returning to work. However, if the employee is only back at work for a short time - and it is the same or similar health problem - the periods can be considered together.

A few days or weeks back at work between two periods of sick leave are often not enough to start a new 12-month period. If, on the other hand, the employee has been fully back at work for a longer period, a new protection period starts from the next medical certificate.

Be an active employer

If an employee is on sick leave, it is important that you as an employer ensure that you maintain regular contact with the employee and that you conduct follow-up- and dialogue meetings and the preparation of the mandatory follow-up plan. Can you perhaps implement measures or offer adaptations that will make it easier for the employee to return to work fully or partially?

Showing that you've done what you can is not only good personnel policy - it's also essential if you're later considering dismissal.

You are welcome to contact us. At Littler, we assist employers with advice on sick leave, dismissals and other labour law issues.