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The Myth of the "Untouchable" Employee on Sick Leave: What is the Protection Period?

It is crucial to realise that the protection period does not only apply to temporary work incapacity (TWI). It covers a whole range of other situations, such as pregnancy, maternity or parental leave, military exercises, or long-term care for a family member. For you as an employer, this means you need to be cautious not only in cases of illness but also in other, less obvious situations.

The most important aspect, confirmed by the case law of the Supreme Court, is the objective and mandatory nature of this protection.

The protection applies regardless of whether you were aware of the fact (e.g., the employee's pregnancy). Arguing that the employee is abusing the situation or has "conveniently gone on sick leave" will not stand up in court. The only legal path is strict compliance with the law and the use of precisely defined exceptions.

When Can You Terminate an Employee Despite Their Work Incapacity? Key Legal Exceptions

Section 54 of the Labour Code provides for situations where protecting an employee would conflict with the legitimate interests of the employer, and it sets out exceptions to the ban on dismissal. However, these exceptions must be applied with the utmost precision.

Organisational Reasons (Section 52(a) and (b) of the Labour Code)

You can give notice of termination to an employee on sick leave if your company or a part of it is being wound up or relocated. Be careful, this exception does not apply to the most common organisational change – dismissal for redundancy under Section 52(c).

Dismissing an employee on sick leave for redundancy is illegal and will lead to the invalidity of the notice of termination.

Grounds for Immediate Termination of Employment (Section 52(g) of the Labour Code)

If an employee commits a particularly gross breach of obligations arising from legal regulations related to their work, the protection period does not apply to them. In such a case, you can proceed with termination even during their illness. However, the severity of the breach is key and its assessment is often the subject of court disputes.

Breach of the Prescribed Medical Regimen (Section 52(h) of the Labour Code)

During the first 14 calendar days of work incapacity, when you are paying the employee wage compensation, you have the right to check whether they are complying with the prescribed medical regimen. If you discover a breach (e.g., they are not at the specified address), you must make a written record of it.

However, only a particularly gross breach of obligations is grounds for a valid notice of termination.

Incorrectly assessing these exceptions is one of the most common and costly mistakes. The lawyers at ARROWS will help you correctly evaluate the situation and prepare documents that will stand up in court. For an immediate solution to your situation, write to us at consultation@arws.cz.

The Employee Fell Ill After Receiving the Notice of Termination. What Now?

A common scenario is that an employee falls ill after a valid notice of termination has been delivered to them. In such a case, the notice period is suspended, and the employment relationship will not end on the originally planned date.

According to Section 53(2) of the Labour Code, if the notice period were to expire during the protection period, the protection period is not counted towards it. The employment relationship will end only after the remaining part of the notice period has elapsed following the end of the work incapacity.

Example: An employee is serving a two-month notice period, which is due to end on 31 October. On 20 October, they fall ill, and their incapacity lasts until 15 November. There were 12 days remaining in the notice period (from 20 Oct to 31 Oct). The employment relationship will therefore be extended and will end 12 days after the end of the illness, i.e., on 27 November.

However, the employee can waive their right to this extension. If they inform you in writing or orally that they do not insist on the extension, the employment relationship will end on the original date, i.e., 31 October.

Special Cases to Watch Out For: Probationary Period and Fixed-Term Contracts

The rules for terminating employment vary depending on the type of contract. The two most common situations where employers make mistakes are during the probationary period and with fixed-term contracts.

Probationary Period

Although you can terminate employment during the probationary period without giving a reason, partial protection still applies. The law prohibits terminating the employment of a sick employee during the first 14 calendar days of their work incapacity. You can only proceed with termination from the 15th day of the illness. Furthermore, the probationary period is automatically extended by the duration of the illness.

Fixed-Term Contract

For employment agreed for a fixed term, the situation is clear. This employment relationship ends upon the expiry of the agreed period, regardless of whether the employee is on sick leave at that time. The protection period plays no role here, and the employment relationship is not extended.

International Dimension: Are You Dealing with Employees Abroad?

If your company operates in international markets, it is essential to realise that Czech legislation is one of the strictest in Europe in terms of employee protection. In countries like Germany or Austria, the rules are significantly more liberal, and terminating an employee on sick leave is possible under much broader conditions.

Applying Czech procedures abroad can lead to mistakes and unnecessary costs. Thanks to the ARROWS International network, built over ten years, we handle labour law cases with an international element on a daily basis. We will ensure that your HR processes comply with local legislation in any country and protect your investment. Need legal assistance abroad? Contact us at consultation@arws.cz.

Invalid Notice of Termination: What Risks and Costs Do You Face?

The consequences of an invalid notice of termination can be devastating for a company. If an employee challenges the termination in court within a 2-month period and succeeds, the employment relationship continues, and you are obliged to retroactively pay them wage compensation for the entire duration of the dispute. This can amount to hundreds of thousands or even millions of crowns.

It is important to distinguish between the authority of the court and the State Labour Inspection Office (SÚIP). Only a court can rule on the invalidity of a notice of termination. While the Labour Inspectorate does not address invalidity, it does check for formal compliance and can impose significant fines for violations, which can reach up to CZK 2,000,000.

How Can ARROWS Provide You with Legal Certainty?

The issue of termination during work incapacity is complex and full of hidden risks. At ARROWS, we have a long-standing specialisation in labour law and provide comprehensive services to protect you from mistakes. Our experience from long-term cooperation with more than 150 joint-stock companies and 250 limited liability companies allows us to provide fast and effective solutions.

For our clients, we handle the preparation and review of all labour law documentation, the drafting of internal policies, representation in courts and before administrative bodies, as well as expert training for management and HR departments. We pride ourselves on high quality and speed. We are also partners for your business – we are happy to connect our clients with interesting business opportunities and listen to your entrepreneurial ideas.

Leave the complex legal agenda to us and focus on what is most important for you – your business. Connect with us at consultation@arws.cz and get a tailor-made legal solution.

Don't want to solve this problem alone? More than 2,000 clients trust the ARROWS law firm, and we have been awarded Law Firm of the Year 2024. Take a look at our references HERE, and it will be our honour to help you solve your problem. The inquiry is free of charge.