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When was your last sick day?

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

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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.

If an employee who is covered by the Danish Salaried Employees Act is off sick for 120 days in any 12-month period, the employer is entitled under the Act to terminate the employment with 1 month‚Äôs notice. But the employer must make sure to give notice ‚Äėimmediately on the expiry' of the 120th sick day. In this case, the question before the Court was whether the employer had been too late in giving an employee notice.
A secretary had been off sick for a long period of time and was given notice under the 120 sick days rule of the Danish Salaried Employees Act. But she did not believe that she had been given notice 'immediately on the expiry’ of the 120th sick day. According to her own calculations, she had been off sick for 135 days at the time of notice.
The employees at the company were responsible for recording their own sickness absence electronically. They had been informed of this duty by email and in written guidelines.
The problem was that the secretary had forgotten to record some of the sick days in the system, so when counting her sick days, the employer ended up with a wrong total.
 
Secretary’s duty
The secretary did not believe that she was to blame and sued her employer, claiming salary for a period equalling her contractual notice period, which was longer than the 1 month's notice the employer was entitled to give by virtue of the 120 sick days rule. Her employer, on the other hand, argued that the secretary was indeed to blame because she had not recorded her sick days properly.
The Court was not satisfied that the secretary had been off sick for 135 days, only for 125 days. Due to the secretary‚Äôs duty to record her own sick days, the employer was not to blame for not terminating her employment with 1 month‚Äôs notice ‚Äėimmediately on the expiry' of the 120 sick days.
The employer was therefore justified in terminating her employment under the 120 sick days rule of the Danish Salaried Employees Act.
 
Norrbom Vinding notes:
  • that the case confirms that employers should always be very careful in calculating their employees‚Äô sick days; but

  • that in the context of the 120 sick days rule, the calculation of sick days may be based on the employee‚Äôs own recordings, even where the employee has not recorded the days properly.
The above does not constitute legal advice and should not be relied upon as such

For more information please visit www.norrbomvinding.com