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trUnder what circumstances can the employment contract of an employee with a disability be terminated?
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Under what circumstances can the employment contract of an employee with a disability be terminated?
One of the most common challenges employers face is managing employment matters involving employees who have been temporarily incapacitated for a prolonged period or who have been officially recognized as having a disability. Under what circumstances may their employment contract be terminated? Is an employee automatically dismissed once a disability is established? Expert Anar Bayramov provides clarification.
The previous wording of Article 74(c) of the Labour Code of the Republic of Azerbaijan, titled "Grounds for termination of an employment contract due to circumstances beyond the parties' control," raised a number of practical questions. The provision stated that, unless a longer period was prescribed by law, an employment contract could be terminated if an employee was unable to perform their job duties due to the **complete loss of working capacity** for more than six consecutive months. The phrase **"complete loss"** created the greatest uncertainty, as it suggested that termination was only possible where the employee had entirely lost their ability to work.
Recent amendments have revised Article 74, clarifying a number of previously ambiguous issues. Under the new wording of Article 74(c), unless a longer period is established by law, an employment contract may be terminated due to circumstances beyond the parties' control where an employee is unable to perform their job duties because of a **continuous loss of working capacity** lasting more than six consecutive months, and it is not possible to adapt the workplace or transfer the employee to suitable light-duty work in accordance with their individual rehabilitation program.
The key change is that the law now refers to continuous (permanent) loss of working capacity, rather than complete loss of working capacity. The explanatory note to Article 74 also defines this concept. According to the note, continuous loss of working capacity is determined based on the opinion of the authority (institution) designated by the relevant executive authority. It means that the employee has been officially recognized as having a disability corresponding to the degree of impairment of bodily functions and has been declared incapable of working for at least one year by the competent authority.
Based on Article 74(c) and its explanatory note, it follows that if the Ministry of Labour and Social Protection of the Population of the Republic of Azerbaijan officially establishes an employee's disability and determines that the employee is incapable of working for at least one year, this may constitute legal grounds for terminating the employment contract.
Example 1: An employee diagnosed with an oncological disease has continuously lost their working capacity for more than six months. However, the Ministry of Labour and Social Protection of the Population has not determined any impairment of bodily functions. In this case, the employer may not terminate the employment contract. The employer must wait for the employee to recover and return to work.
Example 2: An employee has been temporarily unable to work for six consecutive months. Subsequently, the Ministry establishes a disability based on a 31–60% impairment of bodily functions. However, the employer adapts the workplace in accordance with the employee's individual rehabilitation program. In this situation, no legal grounds exist for terminating the employment contract.
Example 3: The Ministry establishes the employee's disability and confirms that the employee is capable of performing light-duty work. The employer transfers the employee, who had been working as an engineer, to a lighter position that does not adversely affect their health. In this case, there is likewise no need to terminate the employment contract.
Example 4: The competent state authority establishes the employee's disability. However, the employee is unable to perform their job duties, and it is impossible to adapt the workplace or transfer the employee to suitable light-duty work in accordance with the individual rehabilitation program. In this case, the employer may terminate the employment contract under Article 74(c) of the Labour Code. Pursuant to Article 77(7) of the Labour Code, where an employment contract is terminated on this ground, the employer must pay the employee **severance compensation equal to at least two times the employee's average monthly salary**.
One of the most common challenges employers face is managing employment matters involving employees who have been temporarily incapacitated for a prolonged period or who have been officially recognized as having a disability. Under what circumstances may their employment contract be terminated? Is an employee automatically dismissed once a disability is established? Expert Anar Bayramov provides clarification.
The previous wording of Article 74(c) of the Labour Code of the Republic of Azerbaijan, titled "Grounds for termination of an employment contract due to circumstances beyond the parties' control," raised a number of practical questions. The provision stated that, unless a longer period was prescribed by law, an employment contract could be terminated if an employee was unable to perform their job duties due to the **complete loss of working capacity** for more than six consecutive months. The phrase **"complete loss"** created the greatest uncertainty, as it suggested that termination was only possible where the employee had entirely lost their ability to work.
Recent amendments have revised Article 74, clarifying a number of previously ambiguous issues. Under the new wording of Article 74(c), unless a longer period is established by law, an employment contract may be terminated due to circumstances beyond the parties' control where an employee is unable to perform their job duties because of a **continuous loss of working capacity** lasting more than six consecutive months, and it is not possible to adapt the workplace or transfer the employee to suitable light-duty work in accordance with their individual rehabilitation program.
The key change is that the law now refers to continuous (permanent) loss of working capacity, rather than complete loss of working capacity. The explanatory note to Article 74 also defines this concept. According to the note, continuous loss of working capacity is determined based on the opinion of the authority (institution) designated by the relevant executive authority. It means that the employee has been officially recognized as having a disability corresponding to the degree of impairment of bodily functions and has been declared incapable of working for at least one year by the competent authority.
Based on Article 74(c) and its explanatory note, it follows that if the Ministry of Labour and Social Protection of the Population of the Republic of Azerbaijan officially establishes an employee's disability and determines that the employee is incapable of working for at least one year, this may constitute legal grounds for terminating the employment contract.
Example 1: An employee diagnosed with an oncological disease has continuously lost their working capacity for more than six months. However, the Ministry of Labour and Social Protection of the Population has not determined any impairment of bodily functions. In this case, the employer may not terminate the employment contract. The employer must wait for the employee to recover and return to work.
Example 2: An employee has been temporarily unable to work for six consecutive months. Subsequently, the Ministry establishes a disability based on a 31–60% impairment of bodily functions. However, the employer adapts the workplace in accordance with the employee's individual rehabilitation program. In this situation, no legal grounds exist for terminating the employment contract.
Example 3: The Ministry establishes the employee's disability and confirms that the employee is capable of performing light-duty work. The employer transfers the employee, who had been working as an engineer, to a lighter position that does not adversely affect their health. In this case, there is likewise no need to terminate the employment contract.
Example 4: The competent state authority establishes the employee's disability. However, the employee is unable to perform their job duties, and it is impossible to adapt the workplace or transfer the employee to suitable light-duty work in accordance with the individual rehabilitation program. In this case, the employer may terminate the employment contract under Article 74(c) of the Labour Code. Pursuant to Article 77(7) of the Labour Code, where an employment contract is terminated on this ground, the employer must pay the employee **severance compensation equal to at least two times the employee's average monthly salary**.