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Failure to provide statement of particulars costs DKK 10 000

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

More articles by this firm.

08-01-2009 - The High Court has now ruled that it will cost an employer DKK 10 000 if no statement of employment particulars is provided. The judgment must be expected to affect future award levels.

High Court judgment

Annemarie Boddum
amb@norrbomvinding.com

The High Court has now ruled that it will cost an employer DKK 10 000 if no statement of employment particulars is provided. The judgment must be expected to affect future award levels.

In 2007, the compensation provisions of the Danish Statement of Employment Particulars Act were amended. The amendment sparked a large number of cases. Now the High Court has had the opportunity to assess compensation under the new guidelines in two cases and the trend goes towards lower awards than those made by the district courts. In the most recent case, the employee claimed about DKK 90 000, but was only awarded DKK 10 000. 

Award level of DKK 10 000

The most recent of the two cases concerned an employee who had never been provided with a statement of particulars from his employer in spite of several requests. The employee was therefore uncertain of his rights and obligations.

The trade union claimed 20 weeks' pay in compensation, amounting to about DKK 90 000, claiming aggravating circumstances which may trigger a maximum award of 20 weeks' pay under the new compensation provisions of the Danish Statement of Employment Particulars Act.

The employer disagreed and the parties ended up in court. On appeal, the High Court found that the failure to provide the employee with a statement of particulars had had a concrete effect on the employee, but that was the only aggravating factor - although the employee had asked for a statement of particulars but never received one. On those grounds, the Court said, there was no basis for departing from the general principle of DKK 10 000 in compensation, corresponding to about 2 weeks' pay. The lower court, however, had awarded double that amount.

Norrbom Vinding has already commented on the other of the two recent cases. Click here to see the article. In that case, the High Court ordered the employer to pay DKK 9 000 in compensation, corresponding to 2 weeks' pay, for naming the wrong employer in the employment contract.

Many cases about compensation

When the Danish Statement of Employment Particulars Act was introduced in 1993, award levels were not regulated in the Act at all. It simply said that compensation could be awarded. In a case from 1997 the Danish Supreme Court said that if there was a concrete effect on the employee, the award should be DKK 10 000. If there was no concrete effect on the employee, it would cost the employer DKK 5 000.

A number of cases have therefore turned on whether the violation had a concrete effect on the employee.

Most recently, the compensation provisions were amended in 2007. The declared objective was a general downward adjustment - particularly for excusable violations, which will not trigger more than DKK 1 000 in compensation under the new provisions. If the violations are not excusable, they may trigger up to 13 weeks' pay and, in aggravating circumstances, up to 20 weeks' pay.

The amendment has not, however, reduced the number of cases as employees and employers are now trying to obtain clarification as to what circumstances are held to be aggravating factors and what the violations should cost.

Now the two recent cases from the High Court have provided guidance on future award levels.

In Norrbom Vinding's view, 

  • with its rulings in the two cases, the High Court has sent a signal that, in the absence of any aggravating factors, violations of the Danish Statement of Employment Particulars Act will not in general exceed DKK 10 000;
  • the rulings represent a partial return to the 1997 levels set by the Supreme Court; and  
  • it will probably take quite a lot for circumstances to be considered aggravating, and failure to provide an employee with a statement of particulars on request will thus not constitute an aggravating factor

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

For more information please visit www.norrbomvinding.com