Termination

Aspects of employment termination

A termination by the employer must always be based on valid grounds and must be in writing. Additionally, the employer must investigate the possibility of redeploying the employee to avoid termination. 

Valid grounds for termination can fall into two categories: substantive reasons and redundancy.

Termination is different from dismissal. If you want to read more about dismissal, you can do so by clicking HERE. 

Termination due to substantive reasons

Termination for personal reasons always targets a specific individual. It requires substantial grounds to terminate someone for personal reasons. The employer is obligated to take a series of steps before a termination for personal reasons is deemed valid, and must be able to fully substantiate the grounds for termination. A thorough examination of the circumstances in each case is necessary.

Misconduct 

Valid grounds for termination for personal reasons may exist if an employee seriously misbehaves in their job. Grounds for termination can include sexual harassment in the workplace or significant problems with cooperation or adherence to company policies. It can also involve less severe, but repeated infractions, such as frequent tardiness, especially if the employer has clearly indicated that such behavior is unacceptable.

Employer’s duty to inform 

The employer must inform the employee that their job may be at risk if the misconduct does not cease, requiring at least a clear warning, and the employee should receive repeated notices. 

An employee should not sign a written warning from the employer if they believe it is unjustified. If the employee receives a warning they believe to be unjustified, they should instead provide a written explanation to the employer. The employer must clearly inform the employee that their employment is at risk to ensure that the termination does not come as a surprise.

Reduced work capacity 

An employee who, due to illness, cannot perform their regular duties or behaves in a way that is normally unacceptable should not be held accountable. Termination due to illness is only permissible in exceptional cases. Reduced work capacity may be valid grounds for termination if the employee can no longer perform any significant work for the employer. 

Valid grounds do not exist if it is reasonable to require the employer to provide rehabilitation, workplace adjustment, or redeployment to a position the employee can manage. The employer bears significant responsibility to assist and support the ill employee.

Redeployment

For termination for personal reasons to be valid, the employer must have thoroughly explored the possibilities of redeploying the employee. This applies regardless of whether the employee has reduced work capacity or has committed misconduct. Redeployment must occur if possible, but the employer is not required to create a new position to facilitate redeployment. 

The specifics of the case and the size of the workplace can affect the extent of the employer’s obligations. Larger workplaces typically have more capacity to redeploy and adjust work than smaller ones. It is also important for the employee to be cooperative in finding a solution that works.

If the employee receives a reasonable redeployment offer, they should accept it since the employer is not obligated to make multiple offers. The offer should be comparable to the previous job if possible. 

The employee may need to accept longer commuting distances, lower employment levels, or even reduced pay as a result of redeployment. Unreasonable redeployment offers should not be accepted, but it can sometimes be difficult to determine what constitutes reasonable versus unreasonable. Employees should contact their union if they are a member or consult with a lawyer if unsure.

Two-month rule 

The employer cannot base a termination solely on a circumstance known for more than two months. The two-month rule applies only to clearly defined events that have occurred. If a termination is based on a persistent issue over time, such as repeated lateness or difficulties with cooperation, it may suffice if the misconduct has existed for two months before the employee is notified of the termination.

Termination due to redundancy 

Redundancy occurs when the employer, due to operational reasons, needs to reduce the workforce. This can result from various factors such as decreased orders, reorganizations, or poor results. Redundancies are not related to the employee personally.

Formalities for termination 

The employer must take various actions depending on the reason for termination.

Personal reasons 

For termination due to personal reasons, the employer must notify the employee that they are considering terminating their employment at least two weeks before the termination. If the employee is a union member, the employer must also notify the union. The union has the right to request a meeting regarding the termination if requested within one week of receiving the notice. 

The employer must then provide a written termination notice to the employee personally. The notice must include a continuation reference, detailing the deadlines the employee must follow if they wish to challenge the termination or seek damages. If requested, the employer must also provide the reasons for the termination in writing.

Redundancy 

For redundancy, the employer must first explore the possibility of redeploying the affected employees to other positions. The employer must create a seniority list indicating which employees will be terminated, with those having the shortest tenure being terminated first. The list must include employees’ names, ages, total employment time, and positions.

An employee with longer tenure can displace an employee with shorter tenure in the seniority list if they have sufficient qualifications for the new role. An employee is considered qualified if they can be trained in a short period to perform the job in question.

In workplaces with at least 10 employees, the employer has the right to exclude two employees from the seniority list whom they consider essential to the continued operation, often referred to as key personnel.

The employer is obligated to negotiate with the relevant employee organization regarding redundancy and must notify the union that terminations due to redundancy may occur.

Notice period

The law mandates a minimum notice period of one month for both employer and employee. The employee’s notice period extends based on their total employment time as follows:

• Employed 2 – 4 years  → 2 months’ notice
• Employed 4 – 6 years → 3 months’ notice
• Employed 6 – 8 years → 4 months’ notice
• Employed 8 – 10 years → 5 months’ notice 
• Employed at least 10 years → 6 months’ notice

An employee who is terminated is entitled to retain their salary and employment benefits during the notice period. The employee must be available for work or available to work during the notice period to receive their notice salary.

If the employee is relieved from work, i.e., not given any tasks by the employer, they must be available for the labor market to be entitled to salary and other benefits during the notice period. The employee should therefore always register with the employment office. The employer may deduct income from other employment from the notice salary. Only income from other employment can be deducted, not pensions or various benefits.

If the employer has made an error 

If an employee believes that the employer has made an error in their termination, they can seek assistance from their union. Alternatively, they can consult a lawyer for help. To challenge a termination, one must notify the employer in writing within two weeks of the termination or dismissal. If no information on deadlines was provided at the time of termination, the deadline is one month from the end of employment.

To claim damages for a violation of LAS, one must notify the employer in writing of the intention to seek damages within four months from the date of the wrongful act. If no information on deadlines was provided, the deadline is also one month from the end of employment. After notifying the employer, the employee has an additional four months to file a lawsuit with the district court for damages.

If you want to read more about damages in employment disputes, you can do so by clicking HERE. 

Compensation for legal fees in employment disputes 

In employment disputes, union members often receive legal assistance from their union. Employees who are not union members or cannot be represented by their union can hire a lawyer. To cover legal costs, one should first check if their home insurance provides legal protection. However, home insurance rarely covers disputes between employer and employee.

If legal protection is not available through home insurance, one can explore the possibility of applying for legal aid. A legal representative can explain the requirements for obtaining legal aid and assist in submitting the application.

If you want to read more about legal protection, you can do so by clicking HERE. 

We can assist you

At Advantage law firm, we have extensive experience in employment law negotiations and court disputes. We handle cases throughout Sweden and assist both employers and employees. Contact us if you need help with an employment-related dispute.