”No, thanks” to sickness absence interview

The Supreme Court recently upheld a high court judgment, establishing that it was okay to summarily dismiss an employee who refused to participate in a sickness absence interview.

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When an employee is absent due to illness, the employer is entitled to require a sickness absence interview and completion of a fit for work statement. According to the Sickness Benefits Act, the employee is obligated to attend such an interview, and non-attendance may lead to the employee losing their entitlement to sickness benefits. But the Act does not regulate the employment-related consequences of the employee’s non-attendance. That was the issue to be decided by the Supreme Court in this case.

The case concerned a technical manager who was on sick leave. On several occasions, he had refused to attend a sickness absence interview with the employer. The technical manager e.g. stated that such an interview would be a ”waste of his time” but did not otherwise refer to being unable to attend. The employer – who had previously informed the technical manager about the consequences of non-attendance – withheld the technical manager’s salary when he failed to attend the sickness absence interview. The employer summoned the technical manager for another interview after a while, which he also failed to attend, and then the technical manager was dismissed summarily.

According to the technical manager, the withholding of salary and the subsequent summary dismissal were unjustified, so he brought an action against the employer – first in the district court, then in the high court and, finally, in the Supreme Court.

Justification and proportionality
The Supreme Court established that it is for the employer to decide whether or not a sickness absence interview must be held. The normal principles of justification and proportionality in relation to managerial authority must, of course, be respected which, for example, means that an employee should not be summoned for an interview if the employer knows that the employee is unable to perform any work tasks. The Supreme Court noted that employers have wide discretion in this regard. In the specific case, the Supreme Court found that the employer had been justified in summoning the technical manager for a sickness absence interview.

Withholding of salary and summary dismissal were justified
With regard to the possible employment-related consequences of the technical manager's failure to attend the sickness absence interview, the Supreme Court noted that this issue had to be decided in accordance with the general rules of employment law.

Based on the fact that the technical manager was obligated to attend the sickness absence interview and that he had refused to do so several times, as well as the fact that he had previously been informed of the consequences of non-attendance, the Supreme Court found that the technical manager’s actions amounted to gross misconduct. Accordingly, the employer was justified in withholding salary and summarily dismissing the technical manager when he (again) failed to attend a sickness absence interview.

Both the district court and the high court came to the same result.

Norrbom Vinding bemærker

  • that the judgment of the Supreme Court establishes that failure to attend a sickness absence interview without reasonable cause may have employment-related consequences such as withholding of salary and, in certain circumstances, summary dismissal.

The content of the above is not, and should not be a substitute for legal advice.

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