Short answer: As a general rule, you cannot dismiss employees because they are on leave. The Working Environment Act provides strong protection against dismissal during leave, but there are some exceptions if the dismissal can be justified on grounds other than the leave itself.
Dismissing an employee on leave is a topic that often creates uncertainty for both employers and employees. The Working Environment Act has clear rules that protect employees against dismissal in connection with leave, whether it concerns pregnancy, parental leave, education, military service or public office. At the same time, situations may arise where the employer has a valid reason for dismissal, but it must be possible to document that the reason is not the leave itself. In this article, we'll go through the rules in the Working Environment Act to give you a clear overview of what applies, what rights employees have and what obligations employers must adhere to.
Section 15-9 of the Working Environment Act provides strong protection against dismissal for employees who are pregnant or on parental leave. A pregnant employee cannot be dismissed because of her pregnancy. If a dismissal occurs during this period, it must be assumed that the dismissal is due to the pregnancy, unless the employer can show that it is highly probable that the reason is different (Section 15-9, first paragraph).
Furthermore, there is special protection for employees who take leave under sections 12-2 to 12-5, i.e. pregnancy, birth and adoption leave. For up to one year, the employee cannot be dismissed with effect during the period of absence, provided that the employer is aware of the reason for the absence, or the employee notifies the employer without undue delay (section 15-9, second paragraph). If notice of termination is nevertheless given before the leave starts, but the resignation falls within the leave period, the notice of termination is valid, but the notice period is extended accordingly.
The same rules apply to leave beyond one year, such as partial leave pursuant to section 12-6 (section 15-9 third paragraph). This means that the employer must be very careful with dismissals in connection with pregnancy and parental leave.
Employees serving compulsory or voluntary military service also have strong protection against dismissal. According to section 15-10 of the Working Environment Act, an employee cannot be dismissed due to leave under section 12-12. This applies both during the actual absence and during periods when the employee is not absent, but is still covered by the leave entitlement (section 15-10 first paragraph).
If a dismissal takes place immediately before or during the leave, it shall be deemed to be related to the leave, unless the employer can show that it is highly probable that the dismissal is due to other circumstances (section 15-10, second paragraph). This means that the employer must be able to document an objective reason that is not related to military service.
This protection is important to ensure that employees who fulfill their obligations to the state do not risk losing their jobs because of their absence.
Section 12-11 of the Working Environment Act entitles employees to educational leave for up to three years, provided they have been in employment for at least three years and employed by the employer for at least two years. The education must be work-related. Although the law does not expressly mention protection against dismissal in this context, the general rules on just cause for dismissal in Chapter 15 apply.
This means that an employee cannot be dismissed for taking educational leave. If an employee is dismissed during this period, the employer must be able to document that the reason for the dismissal is different, for example, operational restrictions or other justifiable circumstances.
The employer may, however, refuse leave if it would hinder proper operations and personnel planning (section 12-11, second paragraph). This means that the employer has some flexibility, but once the leave has been granted, strong protection applies.
Under section 12-13 of the Working Environment Act, employees are entitled to leave of absence to fulfill statutory obligations to attend meetings of public bodies. This could, for example, be a municipal council or other political office. Although the law does not expressly mention protection against dismissal in this context, it would be contrary to the purpose of the law to dismiss an employee due to leave for public office.
Here too, the principle applies that the employer must be able to document that any dismissal is due to circumstances other than the leave. This ensures that employees can participate in society without risking their jobs.
Partial leave is regulated in section 12-6 of the Working Environment Act. This can be taken in connection with pregnancy, birth or adoption, and is based on an agreement between the employer and employee. The employee's request must be fulfilled unless it causes significant inconvenience to the company (section 12-6, second paragraph).
The protection against dismissal in section 15-9 also applies to partial leave. This means that the employee cannot be dismissed because he or she has chosen a part-time solution during the leave period. The employer must be able to document other objective reasons if dismissal takes place.
This protection is important in order to ensure flexibility for parents with young children, while the employer must respect the employee's rights.
Although employees have protection against dismissal during leave, situations may arise where dismissal is still relevant, for example in the event of downsizing. In such cases, the general rules on notice periods in section 15-3 of the Working Environment Act apply.
The notice period varies from one month to six months, depending on seniority and age. If notice is given before the leave starts, but the resignation falls within the leave period, the notice is extended accordingly (section 15-9 second paragraph). This ensures that the employee does not lose any rights due to the leave.
Employers must therefore be careful to follow both the notice periods and the rules on protection against dismissal in order to avoid invalid dismissals.
No, a pregnant employee cannot be dismissed due to pregnancy (section 15-9 first paragraph).
Then the dismissal is considered to be related to the leave, unless the employer can prove otherwise (section 15-10 second paragraph).
Not because of the leave. The dismissal must be objectively justified in other circumstances.
Yes, the protection against dismissal also applies to partial leave (sections 12-6 and 15-9).
Yes, if the leave would hinder proper operations (section 12-11, second paragraph).
The notice period is extended if the resignation falls within the leave period (section 15-9 second paragraph).
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