Summary dismissal for undocumented sick leave upheld

A police officer asked for two weeks of holiday but was only granted one week. Despite that, he went on a two-week holiday to the Seychelles with his wife. After the first week of holiday, he reported sick on Monday. His employer was then unable to contact him for the rest of the second week. Upon his return, he ended his sick leave and announced that he was ready to work again.

In light of the circumstances, the employer was convinced that the employee had been lying and had effectively been able to work during the second week. Because the employee therefore had been absent from work without a valid reason, he was summarily dismissed for his disloyal behaviour. However, the employee disagreed and maintained that the summary dismissal was unjustified as he had in fact been sick.

The employee could not prove that he had been sick

Employees are entitled to sick leave in case of reduced working capacity. In this case, the employee claimed that his week of sick leave was caused by a 15 year long bad mental state. He argued that his poor mental state was a result of him feeling unfairly treated by the employer, which had resulted in sadness and stress reactions. The employee stated that due to his bad mental state, he felt that he would be unable to work in the week in question and had therefore chosen to stay at the holiday resort.

The Swedish Labour Court noted that the employee had participated in various holiday activities during the week he was on sick leave at the holiday resort. At the same time, the only evidence that supported his claim that he was unable to work during the week was information from himself and his wife, who had been on the trip with him.

On that basis, the Swedish Labour Court found that the employee had not proven that he had been unable to work during the week. Consequently, he had been absent from work without neither permission nor valid reason. Due to the gross breach of his duties towards his employer, the Swedish Labour Court concluded that the summary dismissal was justified.

IUNO’s opinion

This case shows just how fundamental employees’ duty to be available for work is and what sanctions companies can initiate in case of unlawful absence. Although the protection against termination in Sweden is very high, unlawful absence is therefore as a main rule considered a gross breach of duties which can lead to termination or even summary dismissal.

IUNO recommends that employees and companies maintain a good dialogue and ensure that there are internal established guidelines and rules for documentation of sick leave and other codes of conduct. Companies should also make sure to act immediately if an employee is believed to act disloyally or otherwise against the internal rules.

Despite that no legal requirement on medical certificate had yet been actualized in this case, it was indicated that the employee could have avoided the outcome if he upon arrival obtained a medical certificate proving his claimed sickness. This shows that companies, in certain specific situations, can require presentation of a medical certificate where claimed sickness can be particularly questioned. However, before this requirement is set, or the employee is sanctioned for disloyalty or non-compliance with the rules, we recommend seeking legal advice.

[The Swedish Labour Court Case 21/2021 of 12 May 2021]