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Can employees be terminated due to long-term sick leave?

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Legal news
calendar 31 October 2021
globus Norway

It is not lawful to terminate an employee during the first year they are on sick leave. But what applies once that protection period is over? In a recent case, a sales manager was terminated after the end of the protection period following a long period of sick leave. The Norwegian Court of Appeal found that the termination was justified, partly because it was unclear if and when the employee would fully or partly recover.

The case concerned a service company within the oil industry, which carried out a reorganisation while a sales manager was on 40 to 80 % sick leave due to back pain. The employee’s position disappeared in connection with reorganisation, but he was offered and accepted a trusted position as a sales manager. However, he eventually went on 100 % sick leave.

After having been on sick leave for more than a year, the employee was invited to a discussion meeting. During the meeting, it became clear that he could not work and that his prognosis was uncertain. Other positions in the company were discussed, but the employee clarified that he could not work in any position. The employee was later terminated as a result of the duration of the sick leave and the lack of expectation of a full or partial recovery.

As the employee believed that the company had not fulfilled its obligation to accommodate his needs, he claimed that the termination was invalid, and the case ended with the Norwegian Gulating Court of Appeals. The court then had to decide if the termination had been just.

Duty to accommodate had been fulfilled

When terminations are caused by sick leave, the company’s duty to accommodate and the employee’s prognosis play a crucial role, together with an assessment where the interests of the parties are balanced against each other. Based on this assessment, the court found that the termination was justified.

As part of the assessment, the court had considered if the company had satisfied its duty to accommodate the employee’s needs. It noted that the company could provide equipment typical for accommodation in connection with back pain at the workplace and that the employee had been given great freedom both in terms of work tasks and working hours. Also, the court emphasised that the employee had not expressed a need for other measures. As the employee himself had stated that it was uncertain whether and when he would recover, the company did not have to wait for clarification. A clearer prognosis for the employee would only be available several months after the discussion meeting.

After having balanced the interests of parties, the court concluded that the company’s interests outweighed the employee’s, seeing that his position could not be filled by an agency worker and that he had refused other positions. Further, the employee’s co-workers had an increased workload because they had to take over his work tasks. On that basis, the court found that the termination was justified.

IUNO’s opinion

The case confirms that employees also have to participate when accommodating the workplace as part of the return to work. The company can only accommodate the workplace based on the information received from the employee. If the employee does not find the company’s accommodation to his or her needs good enough, the employee should inform the company and come up with alternative measures. If the employee does not participate, the requirements for the company’s duty to accommodate the employee’s needs become more lenient.

In the event of termination due to sick leave, the company’s follow-up with the employee will become part of the court’s assessment, if the termination is challenged afterwards. IUNO recommends that companies comply with the deadline for follow-up plans, update them regularly, establish routines with the safety representatives and actively participate in dialogue meetings.

[The Norwegian Gulating Court of Appeals’ judgement LG-2021-45622 of 16 September 2021]

The case concerned a service company within the oil industry, which carried out a reorganisation while a sales manager was on 40 to 80 % sick leave due to back pain. The employee’s position disappeared in connection with reorganisation, but he was offered and accepted a trusted position as a sales manager. However, he eventually went on 100 % sick leave.

After having been on sick leave for more than a year, the employee was invited to a discussion meeting. During the meeting, it became clear that he could not work and that his prognosis was uncertain. Other positions in the company were discussed, but the employee clarified that he could not work in any position. The employee was later terminated as a result of the duration of the sick leave and the lack of expectation of a full or partial recovery.

As the employee believed that the company had not fulfilled its obligation to accommodate his needs, he claimed that the termination was invalid, and the case ended with the Norwegian Gulating Court of Appeals. The court then had to decide if the termination had been just.

Duty to accommodate had been fulfilled

When terminations are caused by sick leave, the company’s duty to accommodate and the employee’s prognosis play a crucial role, together with an assessment where the interests of the parties are balanced against each other. Based on this assessment, the court found that the termination was justified.

As part of the assessment, the court had considered if the company had satisfied its duty to accommodate the employee’s needs. It noted that the company could provide equipment typical for accommodation in connection with back pain at the workplace and that the employee had been given great freedom both in terms of work tasks and working hours. Also, the court emphasised that the employee had not expressed a need for other measures. As the employee himself had stated that it was uncertain whether and when he would recover, the company did not have to wait for clarification. A clearer prognosis for the employee would only be available several months after the discussion meeting.

After having balanced the interests of parties, the court concluded that the company’s interests outweighed the employee’s, seeing that his position could not be filled by an agency worker and that he had refused other positions. Further, the employee’s co-workers had an increased workload because they had to take over his work tasks. On that basis, the court found that the termination was justified.

IUNO’s opinion

The case confirms that employees also have to participate when accommodating the workplace as part of the return to work. The company can only accommodate the workplace based on the information received from the employee. If the employee does not find the company’s accommodation to his or her needs good enough, the employee should inform the company and come up with alternative measures. If the employee does not participate, the requirements for the company’s duty to accommodate the employee’s needs become more lenient.

In the event of termination due to sick leave, the company’s follow-up with the employee will become part of the court’s assessment, if the termination is challenged afterwards. IUNO recommends that companies comply with the deadline for follow-up plans, update them regularly, establish routines with the safety representatives and actively participate in dialogue meetings.

[The Norwegian Gulating Court of Appeals’ judgement LG-2021-45622 of 16 September 2021]

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