What Employers Need to Know About Dismissals
In this article, we delve into the legal framework, clarify case law, and provide practical tips for employers on how to manage the process.
Updated
When the Line is Crossed: What Employers Need to Know About Dismissals
Terminating an employment relationship is never easy, and dismissal is the most drastic measure an employer can take. But what does it really mean when an employee has "grossly neglected their duties"? In this article, we delve into the legal framework, clarify case law, and provide practical tips for employers on how to manage the process—from burden of proof to documentation.
What is Dismissal?
Dismissal refers to the immediate termination of an employment relationship and is the most severe action an employer can take. Commonly referred to as being "fired," dismissal is based on serious misconduct that constitutes a breach of the employment contract. It is regulated under the Swedish Employment Protection Act (1982:80).
When an employee is dismissed, the employment ends immediately. This means no notice period, continued salary, or other benefits, and the employee loses any right to rehire. Typically, dismissal does not require prior warnings or relocation attempts by the employer. However, it is critical for employers to adhere to legal procedures to avoid costly damages or legal disputes.
Key Differences Between Dismissal and Termination
It is important to distinguish between dismissal and termination, as the two processes differ significantly. Here’s a summary of the key distinctions:
Dismissal:
- Employment ends immediately.
- The employee and union (if applicable) must be notified one week in advance.
- Requires the employee to have grossly breached their obligations.
Termination:
- The employee is entitled to a notice period.
- Notification must be given two weeks in advance.
- The employer must make the employee aware of issues.
- The employer must offer relocation if possible.
Grounds for Dismissal
For a dismissal to be valid, the employee must have committed a serious breach of their obligations. These are typically significant and severe incidents, though factors such as the organization's size and the employee's role may also influence the evaluation.
- Examples of actions that may justify dismissal include:
- Physical violence or threats against colleagues.
- Criminal behavior at work or crimes targeting the employer, such as theft.
- Disloyalty or running a competing business.
- Prolonged unauthorized absence.
Dismissal and Case Law
To determine whether a dismissal is justified, employers can look to previous rulings by the Swedish Labour Court for guidance.
For example, in case AD 2022 no. 56, an employee was dismissed for unauthorized absence. The individual had been granted a one-week vacation but reported sick and remained absent for over a month. The employer suspected the medical certificate was fraudulent and dismissed the employee for unauthorized absence. The Labour Court upheld the dismissal.
In another case, AD 2020 no. 44, a police officer was dismissed after committing an assault outside of work. The court emphasized that violent crimes are particularly serious for police officers as they conflict with their professional responsibilities.
The Two-Month Rule
Employers cannot dismiss an employee for incidents that have been known for more than two months. Action must be initiated within two months from the time the issue comes to the employer's attention.
Burden of Proof
The burden of proof lies with the employer, meaning you must demonstrate that the incidents leading to dismissal occurred. Proper documentation of all events and circumstances is essential.
Notification to the Employee and Union
Employers must notify the employee of the dismissal one week in advance. If the employee is a union member, the union must also be notified at the same time. The union then has one week to request a negotiation, during which the dismissal must be put on hold until the discussion is concluded.
Written Notice of Dismissal
After any negotiation, the employer may issue a written notice of dismissal to the employee. The dismissal takes effect as soon as the notice is received, with no entitlement to a notice period. The notice must include instructions on how the employee can challenge the dismissal, which must be done within two weeks.
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