Background

According to the preliminary works of the Swedish Employment Protection Act (1982:80), and to principles established by the Swedish Labour Court, an employee’s resignation from employment may, in some circumstances, constitute constructive dismissal. In order for this to be the case, an employee’s resignation must be as a result of their employer’s behaviour. To prompt constructive dismissal, the employer’s behaviour must have been incompatible with good practice in the labour market, or otherwise inappropriate. It is not required that the employer directly intended to induce its employee to resign. However, it is sufficient that the employer could have envisaged that its actions would lead to a difficult situation for the employee, and present a risk that the employee would resign.

Facts

B.N was employed as a teacher with a municipal school in Malmö, in southern Sweden. In December 2003, the employer sent the employee a written warning that he had acted inappropriately toward his students. Following this the employee reported in sick until the 28 October 2005, when he immediately resigned from his employment due to his health and economic situation. During the sickness period, the employer carried out a rehabilitation investigation which was forwarded to the Social Security Agency.

A meeting was held with the employee regarding the warning, and another meeting was held where the employee’s work situation was discussed. After the resignation, the employer sent a letter to the employee, inviting him to a new rehabilitation meeting on 31 October 2005. The parties also tried to agree on a financial settlement.

The question in dispute was whether the employer had induced the employee to resign from his employment by not taking sufficient rehabilitation measures and whether the employee’s resignation could constitute constructive dismissal.

The Labour Court held that the employee had been offered opportunities to return to work, but had not showed any interest in returning to work. Although the employer could be criticised for not taking more action, the Labour Court found that the employer had not acted passively. The Labour Court therefore found that the employer’s actions did not constitute a violation of good practice on the labour market and were not otherwise inappropriate. The employee’s resignation was not therefore regarded as constructive dismissal.

Effect on employers

This decision indicates that, provided an employer does not act passively in its measures to assist a sick employee with a return to work, the risk that the employee’s resignation is regarded as a constructive dismissal should be significantly low.

The Labour Court delivered its decision on 17 December 2008 in case no AD 106/2008.