Dismissal on grounds of misconduct

The dismissal must be based on fair grounds

If you are considering dismissing someone, you must first consider carefully what evidence you have to support your claims. The evidence must not be based on hearsay or unsubstantiated assumptions, but you must have substantively fair grounds.

Fair grounds for dismissal means that an employee is behaving in an undesirable way and is aware that the behaviour is not acceptable. As an employer, you are therefore obliged to make the employee aware that you consider their behaviour to be improper.

Misconduct, such as failure to cooperate, incompetence and poor work performance, can be fair grounds for dismissal on grounds of misconduct.

Employee misconduct

Reassignment obligation

If you are considering dismissing someone on grounds of misconduct, you must in some cases first investigate whether the employee can be reassigned rather than dismissed. This applies if the misconduct is mainly incompetence and cooperation problems, i.e. situations where a relocation could "solve the problem". Failure to do so may invalidate the dismissal and lead to damages.

If there is a shortage of work, there is always an obligation to investigate the possibility of relocation.

if the employee is not able to work with certain people in the company, reassignment may resolve the conflict. An employee who does not perform well in one type of job might be able to handle other work tasks just fine. However, such reassignment only needs to be done if there is a vacancy and the employee has sufficient qualifications (meets the minimum requirement for a new hire) for the new duties.

Warning or reprimand

A dismissal should never come as a surprise to an employee. You must therefore make the person aware of the problem at hand. There is no requirement for the information to be in writing, but you must be able to prove that the employee has received it.

A reprimand or warning can be used to inform the employee that their employment may be terminated if certain behaviour is repeated. You are simply reminding the person of their obligations under the employment contract and also informing them of the risk of dismissal. Through the reprimand/warning, the employee must therefore be given the opportunity to correct his behavior, aware that he runs the risk of being dismissed if correction is not made.

There is no requirement for the warning to be repeated.

Employment Protection Act (LAS) at the Riksdag (in Swedish)

The two-month rule

The two-month rule means that a dismissal cannot be based solely on circumstances that you have known about for more than two months. However, things that happened in the past may come back into play in the context of a new incident.

The rule starts from the date on which you, the supervisor or other representative of management becomes aware of a particular incident. You must then act within two months if you wish to terminate the person's employment. If there is uncertainty about the incident that occurred, the time will only start to count when the situation has become clear to you.

The two-month rule is a general rule with two exceptions. Dismissal can take place even after two months in the following two cases:

• The employee asked you to postpone dismissal.
• There are exceptional reasons, meaning that the employee has committed a very serious offence or is guilty of misconduct of a continuous nature.

Warn the employee and notify the union

Before you can dismiss someone on grounds of misconduct, you must warn the employee at least two weeks before the dismissal. The employee's trade union must also be notified within the same timeframe and be given the same information as the employee. They then have the option to request consultations within one week.

If the union or the employee request consultations within one week, the dismissal must be postponed until the consultations are complete. During that time, you must pay the same wages and provide the same benefits to the employee as before.

Summary dismissal

The law makes a distinction between dismissal and summary dismissal. For summary dismissal to apply, there must be deliberately reprehensible behaviour that should not be tolerated in any employment relationship. There is also no notice period, but the employment is terminated with immediate effect. With summary dismissal, there is no reassignment obligation as with regular dismissal.

Typical dismissal situations are crimes at the workplace, breach of trust, violence and threats, violations and harassment or disloyal actions or behaviour.

In the event of summary dismissal, the employer must warn the employee (notification to the employee and notice to the trade union concerned) one week before the dismissal. A summary dismissal is a very serious event for both the employer and the employee, with major consequences for the employee both financially and professionally.