In a recent judgment (TT:2015-62), the Finnish Labor Court ruled on whether an employer was required to pay sick pay to an employee who, the employer suspected, was abusing his right to sick leave benefits. In this case, an employee had refused to perform certain work as directed by the employer. This led to a disagreement at the workplace between the employer and the employee, resulting in the employer issuing the employee with a warning for unreasonable refusal to work. The employee felt stressed about the situation, sought help from the occupational healthcare provider, and was declared unable to work due to severe stress and adjustment disorders. The employee reported sick and presented two separate doctor's certificates to the employer.

The employer claimed that the employee had intentionally abused the right to sick leave benefits, due to the disagreement with management and in order to avoid carrying out the work assigned to him without having to face dismissal. The employer thus felt that it was not obligated to pay any sick pay under the applicable collective bargaining agreement. The employer also claimed that the employee was in fact fit to work. The employer further argued that if the employee was in fact unable to work, the employee had caused this state of affairs himself by his own grossly negligent conduct.

The court held that it had not been shown that the employee had sought sick leave in order to avoid carrying out the work assigned to him or being dismissed. The court did find that, by refusing to carry out certain work, the employee had caused the disagreement in the workplace which had caused the employee to suffer from stress. However, even under such circumstances the employee could not be deemed to have caused his incapacity to work by gross negligence. The court further noted that if the employer had harbored doubts as to whether the medical diagnosis was correct, the employer should have engaged another doctor to reassess the employee's medical condition or requested further clarification of the doctor's certificates presented by the employee.

The ruling illustrates the difficulty in proving suspected abuse of the right to sick leave benefits. Further, it emphasizes the importance of the employer requesting, before withholding any sick pay, that the medical condition of the employee be reassessed by another doctor if the employer finds the first diagnosis unclear in some respect or when in doubt of the reasons for the sick leave.

Comments from a Swedish perspective:

From a Swedish perspective, if an employee has provided a doctor's certificate stating that the employee is unable to work due to illness or disability, a company should contemplate not paying sick pay only if the company can obtain a second opinion to the effect that the employee is, in fact, fit to work. If the company suspects the employee of abusing the right to sick pay, the company should, as a first step, ensure that the employee provides a doctor's certificate on the first day of illness and that the employee sees a doctor from the company's occupational healthcare provider. It should be noted that the reason for the employee's illness does not affect the employee's right to sick pay under Swedish law, unless the illness or disability occurred when the employee committed a criminal offence of which the employee has been convicted.