Rules protecting an employee on sick leave
An employee on sick leave (known in Poland as L4) enjoys protection against termination of their employment contract under Article 41 of the Polish Labour Code. Under this provision, the employer may not give notice of termination of the employment contract during the employee's justified absence caused by illness. This means that an employee on sick leave is protected against dismissal as long as their justified absence continues and they meet the conditions arising from the regulations. The employer has no right to terminate the contract as long as the employee remains on sick leave and enjoys the protection arising from the period of receiving sickness benefit or other benefits related to incapacity for work.
Duration of protection
The protection of an employee on sick leave depends on the length of their employment with a given employer. If the employee has been employed by the employer for less than 6 months, protection against termination of the employment contract lasts for 3 months of their absence. If, on the other hand, the employee has been employed for at least 6 months, they are protected for 182 days, that is for the entire period of receiving sickness benefit (see the article Which employees are protected against dismissal, available at gov.pl).
Protection in special cases
The protection of an employee on sick leave is also particularly important in the case of incapacity for work caused by tuberculosis or pregnancy, as well as an accident at work or an occupational disease. In cases where the incapacity for work was caused by an accident at work or an occupational disease, the employee has special legal protection. In such situations, the protection lasts not only for the period of receiving sickness benefit, but also for 6 months after the end of the benefit period. An employee on sick leave for these reasons cannot be dismissed until the protection period provided for in the Labour Code has expired.
Returning to work after sick leave
After the end of sick leave, the employee should report their return to work without delay. The employer may not give the employee notice of termination of the employment contract immediately after the end of sick leave, unless there are other justified reasons for terminating the employment contract, such as a reorganisation of the workplace or other circumstances provided for by law.
Situations that allow dismissal of an employee on sick leave
As a rule, the employer cannot give notice of termination of the employment contract to an employee who is on sick leave. There are, however, certain exceptions that allow the employer to end the employment relationship, even if the employee is unable to work due to illness.
Liquidation or bankruptcy of the employer
One of the exceptions in which the employer has the right to dismiss an employee on sick leave is the liquidation or bankruptcy of the company. In such a situation there is no obligation to continue employing the employee, and termination of the contract may take place regardless of the ongoing sick leave.
Collective redundancies
In the case of collective redundancies, carried out on the basis of the Act on Collective Redundancies, the employer also has the right to end the employment relationship with an employee who is on sick leave. Although this provision is applied in exceptional situations, a reorganisation or restructuring of the company may justify terminating the contract with an employee, even if they are on sick leave.
Disciplinary dismissal due to the employee's fault
The employer may also terminate the employment contract of an employee on sick leave without notice if the employee committed a serious breach of their employee duties before the leave began. Under Article 53 § 1 of the Labour Code, such a disciplinary dismissal may take place even during an ongoing absence from work due to illness, provided the employee committed a breach that justifies termination of the contract.
Incapacity for work due to an occupational disease or an accident at work
After the end of the protection period, which covers the time of receiving sickness benefit plus an additional 6 months, the employee is obliged to report their return to work without delay. If, however, after this period the employee does not report their return to work immediately after the incapacity for work has ceased, the employer has the right to terminate the employment contract with the employee.
Abuse of sick leave
The employer has the right to terminate the contract without notice if the employee abuses sick leave – for example by performing paid work or engaging in activities contrary to the purpose of the sick leave. In such cases, ZUS and the employer may carry out an inspection to determine whether an abuse has occurred.
Consequences of unlawfully dismissing an employee on sick leave
Under the provisions of the Labour Code, the employer cannot dismiss an employee who is on sick leave, except in situations where the regulations allow termination of the contract. Unjustified termination of the employment contract without notice during the employee's absence due to illness can lead to serious legal consequences for the employer.
Employee rights after unlawful dismissal
If the employer terminates the contract of an employee on sick leave unlawfully, the employee has the right to pursue their rights in court (see the article Termination of a contract after returning from sick leave, available at poradnikprzedsiebiorcy.pl). In such a case, the employee may file a claim with the labour court, demanding reinstatement on the previous terms or compensation for unlawful dismissal. Reinstatement may take place after the employee reports for work in connection with a court judgment, which means the employer will have to re-employ the employee, even after a longer period of time.
The employee may also pursue claims for payment of remuneration for the period during which they were unlawfully deprived of work. The amount of compensation may cover remuneration for the entire period of absence, even up to the time when the period entitling the employer to end the employment relationship has expired.
Possible court judgments and their effects
In practice, labour courts often side with employees, especially in situations where the employment contract was terminated during the employee's incapacity for work caused by illness, that is during the protection period. In such cases, the court may award high compensation or order the employer to re-employ the employee on the previous terms.
One example is a judgment in which the court found that termination of the contract without notice in the case of another justified absence from work was contrary to the regulations, because the employee was entitled to protection arising from their incapacity for work. The employer was ordered to reinstate the employee and to pay remuneration for the entire period of absence.
Penalties for the employer for unlawful dismissal
Unjustified dismissal of an employee on sick leave entails not only the obligation to reinstate them or pay compensation, but also the risk of penalties imposed by the National Labour Inspectorate (Państwowa Inspekcja Pracy). An employer who breaches labour law may be fined and obliged to remedy the harm caused to the employee. These consequences are particularly severe if the dismissal took place in breach of the regulations protecting employees on sick leave.
In the case of serious breaches, the employer not only risks paying compensation, but may also be held criminally liable, especially if there has been a flagrant violation of employee rights. The Labour Code protects an employee who is unable to work and does not allow dismissal from work during the period of receiving sickness benefit on that account.
Summary
During sick leave (L4), an employee is protected against dismissal, but there are situations in which the employer can dismiss the employee. Termination of the contract with an employee may take place in exceptional circumstances. In some cases, dismissal may take place after the employee reports for work, when their incapacity for work lasted too long. An example is a situation where the employer has the right to end the employment relationship in connection with the expiry of the protection period after a long absence.
If an employee is on leave, the employer cannot terminate the employment contract of an employee who is on leave. Employment during an employee's leave can be ended only in exceptional situations, such as those justifying termination of the contract without notice due to the employee's fault. In such cases, the decision to dismiss may be taken even within 6 months of the termination of the contract, if there are grounds for it. Dismissal may also take place in the event of the employee's absence from work, when that absence exceeds the protection period provided for by the regulations.
