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When the side job goes off the rails

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Legal news
calendar 27 November 2022
globus Denmark

After terminating an operational planner on sick leave, who worked as a tourist bus driver on the side, the company proceeded to summarily dismiss him. The Danish High Court found that it was justified to terminate and, later, summarily dismiss the employee. Among other things, this was because he had been working full-time at his side job during his sick leave without the company knowing.

An operational planner worked full-time and had a side job as a tourist bus driver, which the company knew. For stress-related reasons, the employee went on sick leave from his job as an operational planner. According to the medical certificate he produced, the expected duration of the sick leave was 20 weeks. The company then decided to terminate him.

During his sick leave, the employee was almost working full-time as a tourist bus driver. Once the company became aware of the extent of his side job, he received a summary dismissal. Pursuant to the company, the time spent on the side job delayed the employee’s recovery. The scope of the side job also resulted in the company not being eligible for sick pay reimbursement from the municipality.

Another full-time job was the last straw

The termination and summary dismissal was lawful.

It was lawful to terminate the employee for operational reasons as the company could expect that the employee would not be able to return for a long time. At the same time, it was doubtful if the employee would even be able to return and continue his work as an operational planner.

The main task in the position was demanding. The employee had already expressed earlier that he was not fond of this work task. Additionally, the court would not rule out that the scope of the employee’s side job had contributed to him reporting sick.  

It was also lawful to summarily dismiss the employee. His side job was, basically, equivalent to a full-time position, and the scope of the side job had increased during his sick leave. Moreover, the employee had not informed the company of the extent of the side job.

IUNO’s opinion

This case is a good example of to what extent employees can take on side jobs – including during sick leave. The main rule is that employees cannot continue to work a side job while being on sick leave from their full-time position. However, it is necessary to assess on a case-by-case basis to determine if the side job conflict with the full-time position.

IUNO recommends that companies carefully consider whether a side job is, in fact, preventing the employee from fulfilling the employee’s obligations. In this connection, it is important to be aware that new rights are on the way, which will prevent companies from prohibiting side jobs unless specific exceptions apply.

[The Danish Eastern High Court in case BS-36445/2021-OLR of 8 September 2022]

An operational planner worked full-time and had a side job as a tourist bus driver, which the company knew. For stress-related reasons, the employee went on sick leave from his job as an operational planner. According to the medical certificate he produced, the expected duration of the sick leave was 20 weeks. The company then decided to terminate him.

During his sick leave, the employee was almost working full-time as a tourist bus driver. Once the company became aware of the extent of his side job, he received a summary dismissal. Pursuant to the company, the time spent on the side job delayed the employee’s recovery. The scope of the side job also resulted in the company not being eligible for sick pay reimbursement from the municipality.

Another full-time job was the last straw

The termination and summary dismissal was lawful.

It was lawful to terminate the employee for operational reasons as the company could expect that the employee would not be able to return for a long time. At the same time, it was doubtful if the employee would even be able to return and continue his work as an operational planner.

The main task in the position was demanding. The employee had already expressed earlier that he was not fond of this work task. Additionally, the court would not rule out that the scope of the employee’s side job had contributed to him reporting sick.  

It was also lawful to summarily dismiss the employee. His side job was, basically, equivalent to a full-time position, and the scope of the side job had increased during his sick leave. Moreover, the employee had not informed the company of the extent of the side job.

IUNO’s opinion

This case is a good example of to what extent employees can take on side jobs – including during sick leave. The main rule is that employees cannot continue to work a side job while being on sick leave from their full-time position. However, it is necessary to assess on a case-by-case basis to determine if the side job conflict with the full-time position.

IUNO recommends that companies carefully consider whether a side job is, in fact, preventing the employee from fulfilling the employee’s obligations. In this connection, it is important to be aware that new rights are on the way, which will prevent companies from prohibiting side jobs unless specific exceptions apply.

[The Danish Eastern High Court in case BS-36445/2021-OLR of 8 September 2022]

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