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The sick leave continues - but has protection been lost? Here's what you need to know before dismissing employees on long-term  under the Working Environment Act

The sick leave continues - but has protection been lost? Here's what you need to know before dismissing employees on long-term under the Working Environment Act

Published: 16 May 2025

Do you have an employee who has been absent for months - maybe even years - with no clear signs of improvement? As an employer, what can you do when sick leave starts to take its toll on operations, teams and budgets? Many people think that the path to dismissal is open after 12 months of  - but the reality is more demanding.

Here's the overview you need - and the advice that can save you both frustration and risk.

Introduction

As discussed in a previously published article on dismissal during sick leave , there is an absolute prohibition against dismissal due to illness during the 12-month protection period. However, this does not mean that there is free access to dismissal after the expiry of this protection period.  After the protection period, any dismissal must be ‘objectively justified’ in accordance with the ordinary rules for dismissal under section 15-7 of the Working Environment Act.

In the assessment of whether long-term sick leave constitutes a valid reason for dismissal, there are three factors in particular that the employer must consider: 

  1. Has the employer fulfilled its duty to adapt pursuant to section 4-6 of the Working Environment Act?
  2. What is the likelihood that the employee will be able to return to work within a reasonable time?
  3. Does the dismissal appear reasonable after a specific weighing of interests?

The employer's duty to adapt under section 4-6 of the Working Environment Act - what is required of you as an employer? 

Pursuant to section 4-6 of the Working Environment Act, employers have a comprehensive duty to accommodate employees with reduced working capacity. The employer must facilitate ‘as far as possible’. The employer's duty to adapt is far-reaching, but not absolute - for example, it is not required that a new position is created for the employee.

The employer must carry out thorough assessments and document the organisational measures that have been implemented. Relevant measures can be, for example: 

  • Exemption from certain work tasks.
  • Changed or reduced working hours.
  • Flexible forms of work.
  • Technical or ergonomic equipment.

Adaptation should preferably take place within the employee's normal work, but redeployment to other suitable work may also be relevant. In this connection, the employer has a certain obligation to offer the necessary training and possible retraining.

An important point that many people forget: Together with the employee, the employer must draw up a specific follow-up plan with the aim of returning to work. This is not just a formality - it is an important part of the documentation if it later becomes necessary to consider dismissal.

Assessment of future ability to work - what does the employer need to consider?

The employer must assess the forecasts for whether the employee will be able to return to work within a reasonable time. The decisive factor is not how extensive the absence has been in the past - a dismissal should not be a reaction or punishment for previous sick leave.  The assessment should be forward-looking: Can the organisation still expect high levels of absence in the future, or is the employee now well, or expected to be within a reasonable time?

Nevertheless, the employee's medical history can be relevant, as it provides a basis for assessing future absence. How long the employee has been ill, and how extensive the absence has been, will be important factors in this assessment.

Balancing of interests

Even if the employer has fulfilled its duty to accommodate and the employee's prognosis is poor, the dismissal may still be invalid after a specific weighing of interests. In this assessment, the employer's need to dismiss the employee must be weighed against the disadvantages the employee will suffer as a result of the dismissal.

In a recent judgement from the Court of Appeal (LF-2024-154530), the court ruled that the dismissal of an employee on long-term  was not objectively justified after a balancing of interests. In this case, there was no doubt that the extensive sick leave had created challenges for the company.

Nevertheless, the court found that a dismissal would place a great deal of strain on the employee, particularly in view of his age (56) and qualifications, which could make it difficult to find new work. In the balancing of interests, it was also emphasised that the employer's arrangements, although formally fulfilled, were not optimal.

Conclusion

As this review shows, even outside the protection period, the employer must adhere to strict requirements before the dismissal of an employee on long-term  will be valid. Any dismissal must be based on a thorough and documented assessment of adaptation options, the employee's future prospects and a specific weighing of interests. There are stringent requirements for objectivity - and as an employer, you should tread carefully but decisively. 

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