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Not without my daughter

May 2011 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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Termination of employment

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

As a general rule, employees must attend work – also if their children are sick and need looking after. If a family member is suddenly severely injured, however, the employee may take time off in certain cases. This is laid down in the Danish Act on Employees’ Entitlement to Absence for Special Family-Related Reasons. But does the Act apply to long-term sickness as well? That was the issue before the Danish Supreme Court in this case.

A warehouse employee had a daughter who had just started school. After a short while, she began acting strangely and it turned out that she could be suffering from OCD. The father’s employer was very sympathetic to the employee’s difficult situation at first and gave him several days off in the autumn and half of December, January and February.

Then, in late February, the father informed his employer that he would not be able to return until May at the earliest. At that point, the employer had had enough. The father was dismissed with 3 months’ notice and required to work the notice period. When he did not show up for work, he was summarily dismissed.

Latitude backfired

The father’s union would not stand for this. The parties therefore ended up in court, where the union relied on the Danish Act on Employees’ Entitlement to Absence for Special Family-Related Reasons.

On appeal, the Supreme Court found that the Act did not apply because the daughter's illness had lasted several months and could therefore no longer be considered acute. But the Court did agree with the union that the summary dismissal was unfair, thus overturning the High Court's judgment. Accordingly, the father was entitled to notice pay.

In relation to the summary dismissal, the Supreme Court took into account, among other things, that the employer had accepted the father’s absence for quite some time. In addition, the employer failed to prove that the father had been warned that he would be summarily dismissed if he did not show up.

Norrbom Vinding notes:
  • that the judgment shows that the Danish Act on Employees’ Entitlement to Absence for Special Family-Related Reasons applies only in force majeure-like situations such as traffic accidents or acute illness; and

  • that the judgment emphasises the importance for employers to keep records of any warnings given.
The above does not constitute legal advice and should not be relied upon as such

For more information please visit www.norrbomvinding.com