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When can an employer dismiss an employee who is on sick leave?

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Can an employer dismiss an employee who is on sick leave?

As a rule, you cannot terminate the contract of an employee who is on sick leave. The Labour Code protects employees who are absent from work. Let us point out that we are writing about a justified absence.

Pursuant to art. 41 of the Labour Code: An employer may not serve a notice of termination on an employee during that employee’s leave, or during any other justified absence of the employee from work, if the period justifying the termination of the employment contract without notice has not ended yet.”


Exceptional circumstances when an employer can dismiss without notice an employee who is on sick leave

However, there is a situation when an employer can dismiss an employee in case of his absence at work is prolonged.

Article 53 of the KP provides information on when an employee who is on sick leave may be dismissed without notice:

  • an employer employs an employee for period shorter than 6 months and the employee is on sick leave longer than 3 months,
  • when the period of absence lasts longer than the duration of collection of: sick pay, sickness and rehabilitation benefit for the first three months, with an indication that an employee is employed with a given employer for at least 6 months.


The maximum duration of benefits is, respectively: 182 days and in case of an incapacity to work due to tuberculosis or pregnancy – 270 days. In practice, only after 9 months of being on sick leave (and in the case of tuberculosis or a pregnant woman – 12 months).

Nonetheless, if an employee returns to work after the period of receiving a rehabilitation benefit lasting three months, he/she is protected by the law and cannot be dismissed.


The employer may terminate the contract before the end of sick leave

The employee is not protected in a few cases – if the employee is on sick leave during the following situations, the employer may terminate the contract before the end of sick leave. The aforementioned situations are those in which the contract is terminated due to the fault of the employee. This takes place in the following circumstances:

  • If an employee commits an offence while being employed, when the offence prevents further employment. The offence must be affirmed by a final judgment or must be obvious.
  • If an employee blatantly violates basic employee obligations.
  • If an employee loses the necessary qualifications to perform work due to his/her fault.


Finally, it is worth adding that dismissing the employee because of a long-term absence due to illness is very difficult and often ends with a dispute resolved by the Labor Court.


Author: Katarzyna Szcześniak


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