The Legal 500

Termination of employment

The High Court affirmed the lower court’s judgment that a managing director was guilty of gross ‎misconduct for withdrawing about EUR 10,000 from the company’s bank account for private purposes. ‎The company was therefore justified in summarily dismissing him.‎

Discrimination - Equal Treatment Act

The Danish Supreme Court has affirmed the High Court’s decision that employees are not covered by the ‎special dismissal protection under the Danish Act on Equal Treatment of Men and Women until actual ‎fertility treatment begins.‎ 

by Yvonne Frederiksen

by Christian K. Clasen

by Yvonne Frederiksen

Statements of employment particulars
A no-hire agreement can most likely not be characterised as a term of employment. ‎Therefore, employers are generally not required to inform employees about such ‎agreements by including them in the statements of employment particulars. This ‎follows from a recent Supreme Court ruling.

Termination of employment It was okay to dismiss a salaried employee under the 120 sick days rule although the employee had actually been off sick for 125 days at the time of notice.

A women’s magazine used such unfortunate wording in a job advert that it fell into the discrimination trap.

The Danish Holiday Act has been amended with effect from 1 May 2011.

Termination of employment

The Danish Supreme Court recently ruled in a case about parents’ entitlement to time off to care for a sick child.

Rejecting a candidate on grounds of age should cost EUR 3,400. So the Danish Board of Equal Treatment held in this case.

The Copenhagen Maritime and Commercial Court recently ruled that employer pension contributions and compensation for reduced capacity to work do not always have to be paid to the employee.

An employee breached his duty of loyalty by discussing with some colleagues during his notice period his plans to set up a competing business.

Health and safety at work, freedom of information and general deregulation are some of the themes of the Government’s legislative programme, which was introduced last week.

In the assessment of incapacity for work, part-time employees must be treated in the same way as full-time employees if they did not have a limited capacity for work before the injury was sustained and if they are working part-time only as a temporary measure. So the Danish Supreme Court ruled in two precedent-setting cases.

The Danish Minister for Employment sees a risk that the ECJ will overturn the Danish provisions concerning sickness-affected holiday. New rules may therefore be on their way.

It is okay to dismiss an employee on parental leave if the employer is able to show that the reason is a decline in business.

There are limits to how far journalists can go in order to get their hands on a good story. Two journalists were therefore given a 20-day suspended prison sentence for going undercover at a care centre.

An employer was unable to prove that the warning of summary dismissal sent by post had in fact reached the employee. Thus, the summary dismissal was unjustified

On 30 June 2010, the Danish Eastern High Court established that the provisions and the practice on a number of areas covered by collective agreements, supporting a lower pay for employees under 18 years and termination of the employees when they turn 18, cannot be deemed to constitute a violation of the Employment Equality Directive (Directive 2000/78/EC of 27 November 2000).

The Danish Ministry of Employment wants to stop employees speculating in having their holiday pay paid out. This has resulted in an amendment of the Danish Holiday Act.

Close physical contact and calling an employee “honey" was not enough to prove that a manager had sexually harassed an employee.

The Danish Board of Equal Treatment was not satisfied that an employer’s interpretation of an agreement about part-time leave was in breach of the Danish Act on Equal Treatment of Men and Women.

Three provisions of Austrian law about part-time and fixed-term employment met with opposition at the European Court of Justice – they were held to be at odds with EU law.

The Danish Parliamentary Ombudsman has established once again that public-sector employees enjoy a high degree of freedom of speech.

Stricter duty to notify when posting employees to Denmark – new Act adopted.

It is not a barrier to the free movement of labour for sports clubs to require players they have trained to sign their first professional contract with the club.

The Copenhagen City Court recently awarded a woman 20 weeks’ pay: her employer never issued a statement of particulars although she had asked for one.

Some foreign nationals need a residence and work permit in order to work in Denmark. If they do not hold such a permit, it may cost their employer a fine.

The Danish Marketing Practices Act only offers limited protection against former employees’ competitive activities. This was shown by a ruling from the Danish Maritime and Commercial Court.

New Bill proposes stricter duty to notify for employees posted to Denmark

Employers are allowed to terminate a pregnant employee’s employment if able to prove redundancy due to a decline in orders. This is shown by a judgment from the Danish Western High Court.

The first private individual has now been convicted of using a house cleaner without a residence or work permit. The Danish Supreme Court set the fine at DKK 40 000.

The Information and Consultation Directive does not require a higher level of protection for employees sitting on a cooperation committee – this was recently established by the European Court of Justice.

Employers should be aware that the Danish Marketing Practices Act only offers limited protection against former employees’ competitive behaviour.

The two Danish High Courts maintain a compensation level of between 2 and 6 weeks’ pay for deficient statements of employment particulars

Trade unions are liable to pay damages when breaching Community law by taking industrial action. This was held by the Swedish Labour Court in the so-called Laval case.

The Danish Eastern High Court agreed with the Copenhagen City Court: age was a factor when the Central Customs and Tax Administration relocated a number of staff to a new office in another part of Denmark

It is all right to summarily dismiss a CEO if he has made the company pay his private expenses

The collective agreement for local government employees in Denmark, the KTO agreement, also covers non-unionised local government employees with respect to its provisions on statements of employment particulars. An employer was therefore entitled to correct an employee’s statements of particulars without having to pay compensation

An employee may be off sick and still run a marathon – if so prescribed by his doctor. This was made clear by the Danish Eastern High Court in this ruling.

Also the parents of a disabled child are protected against discrimination if they provide the main share of the child’s care.

A recent ECJ judgment interprets the rules on replacement holiday in the event of sickness, but does not definitively answer the question of whether employees are entitled to replacement holiday if they fall ill during their holiday.

When a parent company is contemplating collective redundancies in one or more subsidiaries, the subsidiary in question must not consult the potentially affected employees until the parent company has made the strategic decision that forces the subsidiary to consider the option of redundancies.

Email correspondence about leave extension was not a promise to extend the contract

The collective agreement between players and clubs not binding on the Danish Football Association (DBU) 01-10-2009

Summary dismissal for failure to turn up for work usually requires advance warning

A change in work responsibilities may constitute a dismissal if it means that the employee loses his or her white-collar status

Data transfers between administrative authorities are now governed by the Danish Data Protection Act alone

An employee planning to adopt her civil partner’s child was protected by the Danish Act on Equal Treatment of Men and Women

Taking into account a candidate’s Danish language skills was not contrary to the Danish Anti-Discrimination Act

In a judgment delivered 12 May 2009, the Danish Western High Court found that an employer’s dismissal of an employee, who under a private party had committed violence against a colleague, was unjustified. The employee was therefore entitled to damages according to section 3 of the Danish Salaried Employees Act. Since the ground for dismissal would have been a justified ground for dismissal, a claim for compensation according to section 2B of the Salaried Employees Act was dismissed. In the case, the Western High Court ranked the dismissal alongside with an immediate release and considered holiday for being taken which resulted in a reduction of the salaried employee’s claim for damages.

An employer breached the Danish Act on Equal Treatment of Men and Women by changing a pregnant employee’s weekly working hours from 37 to 27

An employer failed to provide an employee with a statement of employment particulars and was ordered to pay DKK 25 000 in compensation because it created considerable uncertainty about the employment relationship.

An employer was not justified in dismissing an employee who changed union. The employee was thus awarded compensation of DKK 300 000.

Continued poor performance is not enough in itself to justify summarily dismissing an employee already under notice. Particularly not if the poor performance is a result of the employee’s inability to do his job.

An employer was not justified in dismissing an employee who changed union. The employee was thus awarded compensation of DKK 300,000.

It did not fall within the scope of the Danish Health Information Act when an employee discussed her back problems with her employer

An employer who had deducted too little tax by mistake could deduct the balance from the December payroll

An employer who had deducted too little tax by mistake could deduct the balance from the December payroll

An employer was not justified in dismissing an employee who asked for clarification and discussion of work responsibilities and priorities.

It is okay to dismiss an employee whose extra job takes up so much time as to risk affecting the main job - even if the employee is pregnant Employers are entitled to expect their employees not to take on any extra jobs that will affect their performance in the main job. This is shown by a new district court case.

If an employee needs a day off and the day is a normal work day, the absence must be authorised by the employer or otherwise legitimised, for instance by sickness – and it is for the employee to show that the absence has been authorised. The Danish Western High Court so held in a case where a shop assistant and her employer disagreed about whether she had been given time off to attend a wedding.

An employer who dismisses a pregnant employee will not necessarily fall foul of the Danish Act on Equal Treatment of Men and Women. But the employer will have to prove that the reason for the dismissal was not pregnancy-related.

Employers may be liable in damages to their employees if they fail to organise work properly and inform them of any risks associated with the work. This was established by the Western High Court.

A hospital did not want to hire a midwife because her mother was already working as a midwife at the same hospital. That refusal was not justified, according to the Danish Ombudsman.

The most recent Bill to amend the Danish Aliens Act, which intended to abolish the transitional arrangement for workers from the new EU member states, has been adopted by the Danish Parliament with effect from 1 May 2009.

Two complaints, two decisions: the Danish Gender Equality Board has made two decisions on dismissal on grounds of pregnancy and childbirth-related leave

Employers should always get written evidence of when notice of termination is given. This principle was recently stressed by the Western High Court.

Age was a factor in the Central Customs and Tax Administration’s selection of employees for relocation to a new office. This was established by the Copenhagen City Court in a precedent-setting case.

New Bill proposes to require employers to interview employees on sick leave

Employees may be liable to pay damages to their employers if they steal from the client whose premises they are guarding

Judgment reinforces case law which has established that employers may operate a loyalty bonus scheme so long as the terms and conditions are clear

A pregnant taxi driver was awarded 9 months’ pay after being dismissed for pregnancy

From 1 May 2009, workers from the new EU member states will have access to the Danish labour market on equal terms with other EU nationals, according to a new Bill introduced by the Danish Ministry of Refugee, Immigration and Integration Affairs

Before dismissing a health and safety representative, employers must find out if redeployment is possible

23-02-2009 - Did an encouragement to employ amount to an indirect agreement to employ? 'Yes’, said the Danish Western High Court.

06-02-2009 - Although found to have breached the Danish Act on Equal Treatment of Men and Women twice, an employer successfully proved that a pregnant employee had not been dismissed on grounds of pregnancy or childbirth.

02-02-2009 - A job applicant was not entitled to pay during the notice period or compensation for failure to provide a statement of employment particulars. The applicant failed to prove that he had been hired in the first place

Must a no-hire clause be mentioned in the statement of employment particulars? The Maritime and Commercial Court says ‘yes’ and awards DKK 75 000 in compensation

20-01-2009 - If women can wear shorts to work, so can men. This was established by the Danish Gender Equality Board in a discrimination complaint.

15-01-2009 - Heavier fines for health and safety violations are now a reality. The amendment of the Danish Working Environment Act, which includes a doubling of fines, has come into force.

08-01-2009 - The High Court has now ruled that it will cost an employer DKK 10 000 if no statement of employment particulars is provided. The judgment must be expected to affect future award levels.

22-12-2008 - Fines for health and safety violations to double. A Bill intended to reduce the number of accidents at work introduced by the Danish Minister for Employment

26-11-2008 - Nine months’ pay for unfair dismissal. That was the outcome for an employee who succeeded in an age discrimination suit.

14-11-2008 - The Danish Supreme Court delivered a landmark judgment 2 days ago, approving the dismissal of 2 employees at a shorter notice than under the Danish Salaried Employees Act.

20-10-2008 - Digital sickness benefits, larger fines for health and safety violations and planned labour market reform – the Danish Government's draft legislative programme comprises a number of different proposals.

01-09-2008 - In July 2008, the European Court of Judgment (ECJ) delivered its judgment in a case about family reunification. The implications of the judgment on Denmark’s immigration rules have been the subject of lively media debate in recent weeks: will it open up our borders to immigration and will it affect Danish immigration policy and its employment policy aspects?

26-08-2008 - A legal secretary worked at an English law firm. She was the mother of a disabled child and the primary carer for him. In 2005 she resigned. Afterwards she brought a claim of disability discrimination and constructive dismissal against her former employer on the grounds that she had been treated less well than her colleagues and had been forced to resign because she was the primary carer for her son.

21-07-2008 - A bankrupt company had to let all of its employees go, but the majority was offered employment with a new company which had acquired the activities.

Extending a collective agreement which implements the Proof of Employment Relationship Directive to cover non-union members does not conflict with EU law

04-07-2008 - In May 2008, the Danish Parliament amended the Danish Sickness Benefits Act to increase the period in which the employer must bear the cost of salary paid during sickness or sickness benefits from 15 to 21 calendar days. Only after this period will the employer be entitled to claim a refund of the sickness benefits to compensate for some or all of the cost of sickness benefits or salary paid during sickness. It will still be possible for small employers to take out sickness benefit insurance and to agree a refund of sickness benefits with the relevant local authority in case of long-term or permanent sickness.

24-06-2008 - The case concerned a single mother of two living in Germany and working in Holland. The German authorities had refused to grant child benefits, arguing that she was covered by Dutch legislation. Under Dutch legislation, she would not have been entitled to child benefits because her children were already 18 years old. A number of questions arose concerning the interpretation of the rules on the application of social security schemes to migrant workers and their families.

20-06-2008 - The Danish Parliament recently amended the Danish Equal Pay Act with effect from 15 August 2008. The amendment implements the recast Equal Treatment Directive (Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)).

17-06-2008 - The most recently proposed Bill to amend the Danish Aliens Act by securing easier access for qualified migrant workers has now been passed.

28-04-2008 - The Bill to relax the work permit requirements of the Danish Aliens Act for nationals of the 10 new EU member states – Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia – has now been passed by the Danish Parliament to come into force on 1 May 2008.

19-03-2008 - The Danish Parliament recently passed a Bill on the Danish Labour Court and industrial arbitration tribunals, which replaces the former Danish Labour Court Act.

18-03-2008 - The Danish Minister for Integration Affairs recently tabled a Bill to amend the Danish Aliens Act. In addition to providing the statutory basis for revising the current transitional arrangement for nationals of the ten "new" EU Member States (Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia), the Bill proposes to strengthen the Government's clamp-down on illegal work.

14-03-2008 - The Danish Parliament recently passed the Bill to amend the Danish European Works Councils Act which formed part of the Government's legislative programme. The new Act implements the most recent amendment to the underlying Directive. The Bill was described on this website on 16 November 2007.

06-02-2008 - The Danish Ministry of Refugee, Immigration and Integration Affairs set up a task force in June 2007 to look at options for slimming down business and tourist visa rules and administration.

03-01-2008 - As previously reported on this website, the minimum compulsory retirement age under the Danish Anti-Discrimination Act has risen from 65 to 70 with effect from 1 January 2008. This change will affect not only employment contracts signed after 1 January 2008, but also existing employment relationships.

07-12-2007 - In July 2005, a woman was employed as a retail sales assistant. It was agreed that she would work 20 hours every week, but over a couple of months she worked a considerable amount of overtime.

(statement of employment particulars) 03-12-2007 - In this case, the Court was asked to determine whether an employer was liable for a penalty under the collective agreement for giving inadequate statements of particulars and also for failing to give any at all.

The Danish Football Association (DBU) not bound by collective agreement between players and clubs

The Danish political parties behind the Eastern Europe Agreement recently agreed to further relax the Agreement, which is a transitional scheme to help Danish businesses recruit from the 10 new EU Member States (Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia).

As part of the Danish Government's drive for greater transparency of executive pay packages, the Danish Commerce and Companies Agency sent out to consultation earlier this year a Bill to require listed companies to lay down guidelines for their executive incentive schemes. The resultant Act was passed on 1 June 2007.

Judgment by the European Court of Justice (case C-150/04)

On 30 January 2007, the European Court of Justice (ECJ) delivered judgment in a case concerning the Danish Taxation of Pension Schemes Act and whether it conflicts with the freedoms guaranteed by the Treaty, i.e. freedom of movement for workers, freedom of establishment, freedom to provide services within the EU and free movement of capital.  

The Danish Government and a number of the political parties represented in the Danish Parliament agreed in late 2006 to ban smoking in Danish workplaces and the resultant Bill was recently introduced.

The Danish Government and a number of the political parties represented in the Danish Parliament agreed in late 2006 to ban smoking in Danish workplaces and the resultant Bill was recently introduced.

The Danish Job Card Scheme essentially provides foreign nationals with a fast-track route to residence and work permits for up to 3 years if they have a job offer in hand and the job is on the approved list of job categories.

Judgment by the European Court of Justice (case C-150/04)

In late 2006, the Danish Government and a number of the political parties represented in Parliament agreed to implement a comprehensive ban on smoking in public places and workplaces. The Bill introducing the ban on smoking was to be drafted by the Ministry of the Interior and Health and enter into force on 1 April 2007.

In his employment contract, an employee E was covered by a provision with the following wording: ”The Salaried Employee is under an obligation and will be entitled to retire without notice when reaching 65 years of age, unless otherwise agreed”. In pursuance of this provision, E retired from his position with the company C when he reached 65 years of age.

{mosimage}The Eastern High Court has recently ruled in a case which was previously tried before the Gender Equality Board in the autumn of 2003.

In its judgment of 13 January 2005, the Danish Supreme Court found for the Danish Ministry of Defence in respect of the Ministry's claim that a pilot was liable to pay damages for discontinuing his service 17 months prior to the expiry of his term of 13 years (until attaining the age of 33).

Judgment from the Danish Eastern High Court.

The case concerned the question whether an employee, M, was in breach of a fidelity clause and a non-competition clause.

On 21 January 2005, a unanimous Supreme Court upheld the Eastern High Court's judgment of 18 December 2003 and, thus, acceded to the Eastern High Court's assessment that a large Danish retail chain was entitled to summarily dismiss an employee who announced that after five years' employment she intended to wear a headscarf because of her Muslim faith.