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Judgment in leading case sets aside the parents' right to split parental leave

October 2005 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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{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 connection with an adoption, a male employee had informed his employer that he wanted his own and his wife's parental leave, which was to last for a period of 56 weeks, to be split in such a way that the husband was to be on leave on Mondays and Tuesdays whereas the wife was to be on leave on Wednesdays, Thursdays and Fridays. The employer rejected the claim and transferred the case to his employers' association which maintained towards the employee's trade union that the employee was not - without specific agreement with the employer - entitled to organise his parental leave as requested because (pursuant to the Danish Act on Equal Treatment) there was no unconditional right to choose part-time work.

At the same time, the employers' association did state that they were prepared to accept the employee's taking of leave until the time when a court judgment was available. However, the employee rejected the employer's suggestion and gave notice of termination from his position with the company with reference to the dispute arisen.

The Gender Equality Board ruled that the male employee was entitled to organise his parental leave as desired. At the same time, the Board ruled that the suggestion to await a court judgment on the issue could be characterised as reprisals against the employee for which reason his notice of termination could be equated with the employer's termination of the employee in question. However, the Gender Equality Board did not award compensation in this respect with reference thereto that the disputed issue was undecided by case law.

The employee's trade union then brought the issue of compensation before the Eastern High Court.

The High Court held that after the amendment of the Danish Act on Equal Treatment in 2002 it must be assumed that male as well as female employees may distribute the right to absence over several periods. However, the High Court stated that so far-reaching an interpretation of the Danish Act on Equal Treatment implying that the employees may demand to divide the right to absence so that one parent is absent on Mondays and Tuesdays and the other parent is absent on Wednesdays, Thursdays and Fridays would have to be based firmly on the Act or its travaux preparatoires. The High Court did not find that such an interpretation was justified and therefore ruled that the employee was not entitled to be absent on Mondays and Tuesdays during the parental leave.

Also, the High Court did not find that the course of events leading up to the husband's notice of termination and the suggestions made by the employer and the employers' association as regards part-time employment could be equated with a termination as defined in the Danish Act on Equal Treatment for which reason the claim for compensation was not allowed, and the High Court dismissed the employee's claim in its entirety.

The judgment illustrates

  • that the 2002 amendments of the provisions on parental leave do not provide the employees with an unconditional right to divide the parental leave on individual weekdays, and
  • that in case of a so far-reaching right for the employees such right was to appear more clearly from the wording of the Act or its travaux preparatoires than is the case in the current Act and its travaux preparatoires.

The judgment from the Eastern High Court has led to debate in the media in recent days. In that connection, the Minister for Family and Consumer Affairs, Lars Barfoed, has stated that on the basis of the said High Court judgment he will propose an amendment of the Danish Act on Equal Treatment.

For further information please contact
Camilla Hillerup, attorney
Phone + 45 35 25 39 40