21 February 2024

It is a common labour law problem in Hungary that in case the employee, due to medical reasons, becomes permanently unfit for the job he previously fulfilled, the employer does not amend or terminate the employment (the latter of which would entail an obligation to pay severance pay), but keeps the employee on “idle time” without giving him tasks and salary. In our article, we examine this issue in light of the recent decision of the Hungarian Supreme Court.

1. Facts

The claimant worked for the defendant for 25 years as an unskilled worker. In March 2021, after a year-long sick leave due to illness, his general practitioner declared him as fit for work. Shortly after his return, the employer sent the employee for an occupational health examination. According to the expert opinion prepared on 6 April 2021, the employee was permanently unfit for the job he held, because heavy physical work was not recommended in view of his health impairment and hearing loss.

After the occupational medical examination, the employer did not give tasks and salary to the employee. In May 2021, the employer informed the employee that it cannot offer him another job which he could fulfil considering the restrictions in the opinion of the occupational doctor.

In August 2021, the employee called on the employer to either amend his job in view of his reduced capacity to work or to terminate the employment relationship by giving notice. Since the employer did not respond, the employee terminated his employment with immediate termination in September 2021. The employee started lawsuit against the employer and requested the payment of his salary for the period between April-September 2021, severance payment and other payments in connection with the employer’s unlawful procedure.

The employer argued that it would have been against the law to employ the employee as he was medically unfit for his job and the employer could not offer him a different job.

2. First and second instance judgement

The first instance court granted the claim and ordered the defendant to pay the amounts indicated in the claim.

The court found that the general practitioner declared the employee fit to work, therefore he was not completely incapable to work, the restrictions in the expert opinion only applied to certain work processes, but did not eliminate the employer's employment obligation. If the employer does not fulfill its employment obligation for reasons within its competence, it is obliged to pay salary to the employee for the downtime and it also can be a ground for termination of the employment by the employee.

The second instance court upheld the judgment, however, it took a different legal position: according to the court, the employee could not be considered fit for work (in general) if, based on the opinion of the occupational doctor, he was unfit for the job he held at that time, as fitness for work can only be considered within the scope of the current job of the employee.

However, the second instance court argued that the employer’s obligation to employ (i.e. to give tasks and salary to the employee) cannot be interpreted narrowly, therefore, in case the employee, due to medical reasons, becomes unfit for a certain job, the employer is obliged to adopt the employment and give the employee tasks that he can fulfil. The court emphasized that the employer did not fulfil its employment obligation as it has clearly refrained from adapting to the employee's changed ability to work.

The defendant requested the judicial review of the final judgment. According to its position, the employer was not obliged to offer a different job to the employee after he became medically unfit to his current job.

3. The decision of the Supreme Court of Hungary

Based on the Supreme Court's decision, the request for review was well-founded, so the court annulled the final judgment and ordered the first-instance court to conduct a new hearing.

According to the Supreme Court of Hungary, the second instance court correctly found that the employee was not fit for work, however, it wrongly concluded that the employer should have offered the employee another job. According to the Hungarian Labour Code, in case the employee becomes unfit for his job due to medical reasons, the employer is only obliged to adapt the employment relationship to the changed conditions by offering more favourable working conditions or work schedule. However, this obligation does not include the search for another job for the employee.

Therefore, the courts should have examined whether the employer fulfilled the above-mentioned obligation, whether it had the opportunity to provide more favorable working conditions. However, the trial court did not carry out an evidentiary procedure for this, so the trial must be repeated.

4. Comment

The examined case is a typical example of when the employer neither changes the job nor terminates the employment after the employee has become unfit for the job due to medical reasons. The underlying reason for this is usually to avoid the payment of severance by keeping the employee on the staff without tasks and salary and waiting until the employee resigns, in which case, there is no severance.

Based on the decision, such procedure can be legal, as the employer is only obliged to adapt the working conditions within the scope of the given job of the employee, if the employee’s capacity to work changes. if this is not possible, the employer is not obliged to provide work and pay, nor to terminate the employment relationship.

As the above-mentioned practice can be considered a misuse of rights by the employer, the case law reinforcing the practice differs from the general approach of labour courts which favours the employees.

(In the article, we analysed Supreme Court Decision published under No. “BH 2024.1.16 I.”)