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Pay during parental leave before the Supreme Court ‎

September 2012 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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Discrimination - Equal Treatment Act
The question of whether EU law entitles an employee under notice to receive pay during the notice period ‎if this period coincides with a period of unpaid parental leave will be considered by the Danish Supreme ‎Court.‎
The question of whether EU law entitles an employee under notice to receive pay during the notice period ‎if this period coincides with a period of unpaid parental leave will be considered by the Danish Supreme ‎Court.‎
 
If an employer dismisses an employee on maternity leave, a salaried employee as defined in the Danish ‎Salaried Employees Act will be entitled to salary during the notice period if dismissed within the first 14 ‎weeks of the birth. If, however, the employee is dismissed during the subsequent parental leave, the ‎employee is not entitled to receive salary during the notice period unless, of course, the employee ‎resumes work during the notice period as per agreement with the employer. ‎
 
A number of cases concerning the compatibility of this area of Danish law with EU law are currently ‎pending before the Danish courts, and one of them has found its way to the Danish Supreme Court.‎
 
The case concerns an employee on maternity leave who did not receive her last pay check before her ‎parental leave started. Her trade union therefore terminated the employment, and when her employer ‎went bankrupt, the trade union advanced its claim against the Employees’ Guarantee Fund ‎‎(Lønmodtagernes Garantifond), claiming salary for the last three weeks of the employee’s maternity ‎leave and compensation for non-payment of salary in the notice period.‎
 
The Employees’ Guarantee Fund paid the salary due to the employee covering her maternity leave, but ‎refused to pay compensation for non-payment of salary in the notice period, claiming that the ‎employee was on unpaid parental leave and therefore not entitled to salary during the full notice ‎period. The trade union then issued proceedings against the Employees’ Guarantee Fund, and judgment ‎was delivered by the Danish Eastern High Court in the early summer of this year.‎
 
Danish law is compatible with EU law
The High Court agreed with the Employees’ Guarantee Fund, holding that Danish law is not at odds with ‎EU law.‎
The employee and her trade union have now appealed to the Danish Supreme Court. Thus, an issue ‎which has been debated in Denmark since the EU Court’s judgment in Meerts in 2009 will now be finally ‎determined.‎
Norrbom Vinding is representing the Employees’ Guarantee Fund in the appeal.‎
 
Norrbom Vinding notes:
  • that the Parental Leave Directive does not govern an employee’s entitlement to salary during ‎parental leave, as held by the EU Court in Sánchez-Chamacho and other cases;‎

  • that the EU Court’s ruling in Meerts only establishes that the financial compensation payable ‎under national law to an employee who is given notice contrary to the special dismissal ‎protection enjoyed during periods of parental leave must be calculated on the basis of the ‎employee’s usual pay; and‎

  • that, in Norrbom Vinding’s view, the judgment delivered by the Eastern High Court should ‎therefore be affirmed by the Supreme Court.
The above does not constitute legal advice and should not be relied upon as such
For more information please visit www.norrbomvinding.com