A new law on electronic medical certificates could prevent employees wrongly claiming dismissal protections by obtaining doctor’s certificates after an alleged ‘sick period’.
Based on the new legal regulation, the employee’s medical incapacity should be known to the employer immediately upon issue of an electronic medical certificate, which the doctor will submit directly to the central database accessible by all employers. Such new law has already been approved, but is still subject to political discussions and it remains to be seen if it really will be put in practice from 1 January 2020 (as currently expected). Therefore, this new law could have prevented the outcome of this recent court case; due to the fact the employer would have been aware of the employee’s medical condition prior to sending a dismissal.
In February 2019, the Supreme Court of the Czech Republic dealt with the question of whether the dismissal protection during the sickness period can be denied on the basis that there is a moralistic contradiction.
In the case at hand, the Court was solving a situation where an employee received notice of termination for redundancy, served as a consequence of his recall from a managerial position (this is not considered an automatic demotion by the employer as any continuance in employment on a lower position is subject to the manager’s consent). Practically, it meant that the notice was delivered to the employee’s home, because the employee was on garden leave at the time of the delivery (due to the previous recall). The employee filed a court claim stating various reasons for invalidity of such dismissal. After almost one year from the date of the notice, the employee suddenly informed the Court that he was – on the day when the notice of termination was delivered to him – sick, and submitted a medical certificate to the Court. The employee had never mentioned the four-day sickness to the employer previously, despite the fact that the law requires him to do so.
However, the Supreme Court ruled it is irrelevant whether the employer knew that he was giving notice to a protected employee; an employee is protected from dismissal during this period regardless of an employer being unaware of the sickness at the time, and so the legal consequences still apply.
According to the Court, the protective period for the employee's temporary incapacity for work always takes effect from the date on which the doctor has diagnosed that the employee is temporarily incapable for work, even if he has been rendered incapable for work by an earlier date and ends on the day on which the temporary incapacity for work was terminated.
The employer asked the Court to reconsider as the employee’s conduct appeared to go against good morals, believing the employee obtained a doctor’s certificate to gain dismissal protection. According to the Court, the dismissal protection cannot be denied under any circumstances as it is based on mandatory provision.
As a consequence, the judgement imposes quite a big uncertainty as basically any notice of termination delivered outside of the workplace can later on be challenged by the employee for reason of alleged sickness at the time of the delivery. Nevertheless, such risk should be eliminated for the future provided that the new law on electronic medical certificates comes into force from 1 January 2020 as expected.
(No. 21 Cdo 3722/2017)