How to dismiss an employee on a long-term sick leave? 

One of the biggest benefits of being employed under a contract of employment is that an employee can remain on sick leave without fear of losing earnings or employment. However, employers often ask themselves – what if an employee’s sick leave is significantly prolonged? Can an employee be dismissed on sick leave in Poland?

Can an employee be dismissed when on sick leave?

Pursuant to Article 41 of the Labour Code, an employee during a justified absence from work is protected against termination of the employment contract. This article applies to all types of justified absences, such as, for example, annual leave or sick leave. However, this does not mean that the employer does not have any options to terminate the contract.

At any time, the employer can propose to the employee to terminate the contract by mutual agreement. However, it should be borne in mind that proposing an agreement while the employee is on sick leave may involve risks. The employee may refuse to sign the agreement and block the possibility of termination by maximising the length of his/her leave.

It is also possible to terminate the contract without notice through the fault of the employee, i.e. the so-called disciplinary dismissal.

This possibility is available to the employer regardless of whether the employee is on sick leave. However, a justifiable reason for such dismissal is required (e.g. gross misconduct). Moreover, disciplinary dismissal is time-limited – it can be made within one month of becoming aware of the breach. 

Long-term sick leave versus dismissal – when does the protection end?

Protection against termination during a justified absence, such as illness, is not unlimited. The provision of Article 41 of the Labour Code allows for termination by notice after the expiry of the protection periods regulated in Article 53 of the Labour Code. This article also gives the employer the possibility to terminate the contract without notice and without fault of the employee, due to the employee’s long-term absence from work.

For an employee employed for less than 6 months (counting the period of employment up to the start of the long-term sick leave), the contract can be terminated if the illness lasts longer than 3 months.

For those employed for more than 6 months, the employer must wait for the maximum benefit period, i.e. 182 days of sick leave (or 270 days in the case of illness during pregnancy or tuberculosis), as well as the first 3 months of rehabilitation benefit (if the employee applies for it).

Termination without notice under Article 53 of the Labour Code is only possible if the employee is still unable to work after these protection periods. If the employee notifies his/her readiness to work – the employer will not be able to terminate the contract without notice. However, in such a case it will be possible to terminate the contract by notice.

To summarise – after the expiry of the aforementioned protection periods, in relation to an employee who is unable to work due to illness, the employer may:

• terminate the contract without notice and without fault of the employee under Article 53 of the Labour Code;
• terminate the contract by notice.

The choice of the mode in this case is up to the employer. The relevant mode should be indicated on the employment certificate.

Can I ask the employee to explain the reason for his sick leave?

It should first be remembered that the use of sick leave is an employee’s right. The employee is not obliged to inform the employer of sick leave in advance. In practice, sick leave is usually unpredictable and the employee does not have to inform the employer of the reason for his/her leave and how long he/she will be absent.

The employer obtains all the necessary information about the sick leave directly from the Social Insurance Institution’s account, to which the sick leaves are sent automatically after they are issued by the employee’s doctor. The employer also cannot require the employee to be the one to submit the sick leave for review.

Most importantly, according to the Labour Code and data protection regulations, the employer cannot obtain information about the employee’s health condition.

The employer should not do so either directly – e.g. by asking the employee what he or she is ill with or what his or her health condition is – or indirectly – e.g. by asking the employee until when he or she plans to be on sick leave or whether he or she plans to extend his or her sick leave.

Communication with an employee on sick leave should therefore be kept to a minimum. The employer should avoid asking the employee about his or her situation. The initiative in this regard always belongs to the employee.

Do you have a complicated situation with an employee?

The dismissal of an employee is a highly formal act that should be preceded by an appropriate analysis. If you have more detailed questions about the possibility of terminating an employee, we encourage you to contact the lawyers of the labour law department of our law firm at: [email protected].