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Fine to terminate by registered mail when employee had symptoms of coronavirus

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Legal news
calendar 28. February 2021
globus Sweden

According to the Swedish Employment Protection Act, the main rule is that a notice of termination must be delivered to the employee personally. In a recent case, the Swedish Labour Court ruled that this could not reasonably be required when the employee was on sick leave for an indefinite period due to symptoms of coronavirus. The company was therefore entitled to send the notice of termination by registered mail to the employee's last known address. As a result, the employee missed the deadline to claim invalidation of the termination.

On the day when a catering company planned to personally deliver notice of termination to an employee, the employee called in sick for an indefinite period due to symptoms of coronavirus. Later that day, the company therefore sent notice of termination by registered mail to the employee's last known address.

Since the employee had moved, but never notified the company of his new address, he never received the notice. When the employee wanted to claim the termination invalid, the company argued that the deadline for notifying them had expired, which the employee opposed to.

The deadline is affected by how the notice of termination is delivered

The main rule according to the Swedish Employment Protection Act is that notice of termination must be delivered personally. The notice must also contain an appeal instruction, which is a description of the requirements the employee must meet if they wish to claim the termination invalid. If an appeal instruction is included in the notice, the employee has two weeks from the date when the notice is received, to notify the company of their wish to claim the termination invalid.

If it cannot reasonably be required that the notice of termination is delivered to the employee personally, the employer is entitled to send the notice by registered mail to the employee's last known address. Provided that the notice contains an appeal instruction, the time limit of two weeks begins 10 days after the letter has been delivered to the post office. In this case, the time limit for notification runs regardless of whether the employee has received the notice or not.

In some cases, however, the time limit for notification is set to one month and begins when the employment has ended. This applies if the company sends the notice by registered mail when they should have delivered it personally, and the employee does not receive the notice during their notice period.

Was the company entitled to send the notice of termination by registered mail?

In the current case, the Swedish Labour Court found that the company was entitled to send the notice of termination by registered mail, as the employee had called in sick due to symptoms of coronavirus, which has been classified as a disease that is dangerous to public health and society.

As a result, the two-week notification period began 10 days after the letter had been delivered to the post office. Furthermore, the fact that the employee did not receive the notice of termination became irrelevant. The deadline to claim invalidation of the termination had therefore expired.

IUNO’s opinion

This case proves that a notice of termination may only be sent by registered mail under special circumstances. It further indicates that the date when the termination takes effect and when the time limit to claim invalidation thus begins, as well as the length of the time limit, can differ significantly depending on whether the notice has been delivered correctly or not. This particularly applies if the company cannot prove if, and when, the employee has received the notice.

IUNO therefore recommends that companies, as a main rule, personally deliver notices of termination to their employees. If the company decides to deliver the notice by registered mail, they should carefully consider if they are entitled to do so, and take into account that the termination may take effect even later, if their assessment proves to be incorrect.

[Swedish Labour Court Case 3/2021 of 26 January 2021]

On the day when a catering company planned to personally deliver notice of termination to an employee, the employee called in sick for an indefinite period due to symptoms of coronavirus. Later that day, the company therefore sent notice of termination by registered mail to the employee's last known address.

Since the employee had moved, but never notified the company of his new address, he never received the notice. When the employee wanted to claim the termination invalid, the company argued that the deadline for notifying them had expired, which the employee opposed to.

The deadline is affected by how the notice of termination is delivered

The main rule according to the Swedish Employment Protection Act is that notice of termination must be delivered personally. The notice must also contain an appeal instruction, which is a description of the requirements the employee must meet if they wish to claim the termination invalid. If an appeal instruction is included in the notice, the employee has two weeks from the date when the notice is received, to notify the company of their wish to claim the termination invalid.

If it cannot reasonably be required that the notice of termination is delivered to the employee personally, the employer is entitled to send the notice by registered mail to the employee's last known address. Provided that the notice contains an appeal instruction, the time limit of two weeks begins 10 days after the letter has been delivered to the post office. In this case, the time limit for notification runs regardless of whether the employee has received the notice or not.

In some cases, however, the time limit for notification is set to one month and begins when the employment has ended. This applies if the company sends the notice by registered mail when they should have delivered it personally, and the employee does not receive the notice during their notice period.

Was the company entitled to send the notice of termination by registered mail?

In the current case, the Swedish Labour Court found that the company was entitled to send the notice of termination by registered mail, as the employee had called in sick due to symptoms of coronavirus, which has been classified as a disease that is dangerous to public health and society.

As a result, the two-week notification period began 10 days after the letter had been delivered to the post office. Furthermore, the fact that the employee did not receive the notice of termination became irrelevant. The deadline to claim invalidation of the termination had therefore expired.

IUNO’s opinion

This case proves that a notice of termination may only be sent by registered mail under special circumstances. It further indicates that the date when the termination takes effect and when the time limit to claim invalidation thus begins, as well as the length of the time limit, can differ significantly depending on whether the notice has been delivered correctly or not. This particularly applies if the company cannot prove if, and when, the employee has received the notice.

IUNO therefore recommends that companies, as a main rule, personally deliver notices of termination to their employees. If the company decides to deliver the notice by registered mail, they should carefully consider if they are entitled to do so, and take into account that the termination may take effect even later, if their assessment proves to be incorrect.

[Swedish Labour Court Case 3/2021 of 26 January 2021]

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Anders

Etgen Reitz

Partner

Franziska

Brüggemann

Associate

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