Is an employee protected against dismissal while on sick leave? Or is dismissal permitted during sick leave? Below you can learn more about the rules regarding dismissal during sick leave under the Working Environment Act.

The starting point

The basic principle is that employers have the right to terminate the employment of all employees, both those who are at work and those who are on sick leave. This applies both in the event of downsizing and in the event of termination due to circumstances relating to the employee. Therefore, the basic principle is that sick leave does not automatically provide protection against termination.

Termination due to downsizing

If the employer has objective grounds for downsizing, a selection pool must be determined. This means deciding which employees will be selected for dismissal. Employees on sick leave must be included in the selection pool. Within this selection pool, the employer must define selection criteria. Employees within the selection pool must be assessed individually against these criteria. However, the employer cannot use illness as a selection criterion.

Termination due to circumstances relating to the employee

The employer must have objective grounds for dismissing an employee due to poor work performance or other breaches of the employment contract. It is often natural for the employee to have been followed up with performance reviews where he or she has been reprimanded. Perhaps one or more warnings have also been given. If the employee takes sick leave during this process, this does not automatically protect them from dismissal.

Illness as grounds for dismissal

During the first year of sick leave, sick leave cannot be used as grounds for dismissal. This is stipulated in Section 15-8 of the Working Environment Act. Even though an employee on sick leave can be dismissed, this cannot be done on the grounds of illness. Employers must also be aware that if an employee is dismissed while on sick leave, the dismissal will initially be considered to be based on the illness. The employer must make it highly probable that the dismissal has a reason other than the sick leave.

When an employee has been on sick leave for more than one year, further sick leave may constitute valid grounds for dismissal.  

Audun Lillestølen, Lawyer (H)

The author of this article is a lawyer with the right to appear before the Supreme Court. He has worked with labor law for more than 20 years.