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Doubt about how to interpret part-time leave agreement

July 2010 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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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.

Under s 12 of the Danish Act on Leave and Benefits on grounds of Pregnancy and Childbirth, employees may agree with their employer to return to work on a part-time basis and thus spread the childbirth-related and/or parental leave over a longer period of time. As this decision from the Danish Board of Equal Treatment shows, disagreement may arise between the parties as to how such an agreement should be interpreted if they have not addressed the issue of what happens if the employee goes on maternity leave with another child while still on part-time leave.  

The case concerned an employee who agreed with her employer some time into her parental leave that she would return to work 4 days a week. The remaining part of her parental leave would then be taken as 1 day off each week the next 130 weeks. However, matters were complicated by the fact that the employee gave birth to a daughter while on part-time leave and therefore took ordinary maternity and parental leave in continuation of the part-time leave.  

At the end of the ordinary parental leave, a dispute arose about how the remaining leave from the previous leave period was to be taken. The employer maintained that the employee was to take the remaining leave as 1 day off each week, as originally agreed, immediately after the new leave ended. The employee, on the other hand, argued that the part-time leave was to be stretched over a longer period of time, and complained to the Board of Equal Treatment.  

Sticking to the agreement was not a breach
While the complaint was pending before the Board, the employer reserved the right to claim compensation if the Board spoke in its favour. This, the employee argued, was also a breach of the Danish Act on Equal Treatment of Men and Women.   However, the Board was not satisfied that the employer had breached the Act by sticking to the original agreement. Nor did the Board believe that the employer's reservation of rights involved such a change or breach of the employment contract as to amount to a dismissal.

 

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Norrbom Vinding notes:

  • that the decision shows that when agreeing part-time leave under s 12 of the Danish Act on Leave and Benefits on grounds of Pregnancy and Childbirth, it is important to address the issue of what happens if the employee begins a new period of childbirth-related and/or parental leave or if the part-time leave cannot otherwise be taken as originally agreed.