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The Danish Salaried Employees Act construed in landmark case

January 2009 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

14-11-2008 - The Danish Supreme Court delivered a landmark judgment 2 days ago, approving the dismissal of 2 employees at a shorter notice than under the Danish Salaried Employees Act.

Supreme Court judgment

Jørgen Vinding
jv@norrbomvinding.com

The Danish Supreme Court delivered a landmark judgment 2 days ago, approving the dismissal of 2 employees at a shorter notice than under the Danish Salaried Employees Act.

For many employees, their minimum statutory rights are laid down in the Danish Salaried Employees Act. A central tenet of those rights is the notice periods. As the statutory rights cannot be derogated from to the detriment of the employee, the employee will usually be entitled to at least the notice periods specified in the Act. Two days ago, however, the Supreme Court gave the legal stamp of approval for shorter notice periods than those laid down in the Danish Salaried Employees Act where the overall agreement concerning employment terms and conditions does not impair employees' statutory rights.

More specifically, the case concerned 2 employees working for the same employer, who were given 3 months' notice of termination. Based on their duties and responsibilities, the employees were covered by the Danish Salaried Employees Act and under that Act, they were entitled to 4 months' notice by virtue of their length of service.

The employees' trade union therefore brought a claim against the employer for the remaining 1 month. No - said the employer. The employees had elected to transfer from being public servants to being employed under a collective agreement. And the collective agreement only provided for 3 months' notice.

The Supreme Court said that the collective agreement between the trade union and the employer constituted the overall regulation of the employment terms and conditions of the employees who had elected to transfer to being employed under the collective agreement. Whilst in some situations the individual employees would have their notice periods shortened compared to the Danish Salaried Employees Act, they would on the other hand keep the favourable dismissal terms enjoyed by public servants in the form of a special dismissal procedure, redundancy payment and pension. The Supreme Court further said that there must be a requirement in such a situation that the employees' statutory rights on termination are not prejudiced from an overall perspective. As the agreement in question was a collective agreement, there was a presumption that the collective agreement did not detract from the employee's statutory rights. That presumption had not been rebutted. Accordingly, the employer was justified in giving the 2 employees a shorter notice period than that prescribed by the Danish Salaried Employees Act.

The employer was represented by Norrbom Vinding.

In Norrbom Vinding's view:

  • the case shows that in certain situations, a shorter notice period may be agreed than that prescribed by the Danish Salaried Employees Act provided that, from an overall perspective, this does not prejudice the employees' rights under the Danish Salaried Employees Act

This information does not constitute legal advice and should not be relied upon as such

For more information please visit www.norrbomvinding.com