Unfair summary dismissel

The summary dismissal of the employees was unfair as the employer had fixed a too short time-limit for the employee's obtaining of a specialist statement. On the other hand, the court ruled in favour of the employer as regards claim for compensation after forwarding of an e-mail to "all" informing about the employee's sickness.

Recently, the Eastern High Court confirmed the current practice as to how much time an employee needs to obtain a specialist statement. The Court also decided on the employee's claim for compensation as a consequence of the employer's forwarding of an internal e-mail to "all" informing about the employee's sickness.

The employee had been employed for approx. four years when reporting sick on 3 March 2009 due to stress. He had currently forwarded general doctors' statements to the employer, and the last statement was to expire in the beginning of August 2009. In a letter received on Wednesday 1 July 2009, the employer requested the employee to forward a specialist statement documenting the expected duration of the sickness. The employer was to receive this statement no later than Monday 6 July 2009. As the employee did not forward this specialist statement, he was summarily dismissed by letter of 7 July 2009.

The Court found that the time-limit of the forwarding of the specialist statement was unreasonably short taking into consideration, inter alia, that it was not good enough for the employee to obtain a statement from his own doctor, that the employer had not specified what kind of specialist the employee was to contact, and that there were no reasons necessitating the short time-limit.

The Court therefore awarded compensation to the employee equivalent to salary in the notice period and compensation equivalent to one month's salary under section 2b of the Salaried Employees Act.

During the employee's sickness, the employer had forwarded an e-mail to many employees with the company (approx. 30 people) informing about the employee's sickness due to stress-like symptoms and that "he had faced challenging situations due to his divorce, etc.". The employee complained to the Data Protection Agency as he believed that the employer had disclosed personal data. The employee had himself discussed the matter with three colleagues, but the Agency did not find this to be a "public disclosure of the data". The Agency therefore found it unacceptable that the employer had disclosed the personal data. However, the Court did not find sufficient basis for awarding the employee compensation in this respect under section 26 of the Liability in Damages Act.

Comments

The ruling confirms the existing practice concerning fixing of time-limits in connection with the obtaining of doctors' statements, and the employee should always make a specific assessment as to how fast the employee will be able to obtain a doctors' statement.

Further, the ruling confirms that the employer should always send a reminder, should the employee fail to forward the doctors' statement, and the reminder should also point out that failure to forward the doctors' statement will result in summary dismissal. In particular, the obtaining of a specialist statement may take quite some time as certain specialists have very long waits, and a specialist statement may be significantly more expensive than ordinary doctors' statements.

As regards the question concerning violation of the Personal Data Act, it is not surprising that the violation does not result in compensation as the ruling, also in this respect, is in accordance with previous rulings.

As an employer, you must seriously consider whether you do in fact need a specialist statement before requesting the employee.

The content of this Newsletter is not, and should not, replace legal advice.

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Marianne Lage

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