27. Feb 2017

‎120 days before the Supreme Court

Employers do not need to take into account an off-sick employee's offer to return to work on a part-time ‎basis when calculating the 120 days of sickness absence, according to the Danish Eastern High Court in its ‎judgment from November 2016. A permission to appeal to the third instance has now been granted, and ‎the case will therefore come before the Danish Supreme Court.‎

If so agreed by the parties in advance, an employer is entitled under the Danish Salaried Employees Act ‎to dismiss an employee with only 1 month's notice after 120 sick days within the past 12 months, subject ‎to the express requirement that notice must be given while the employee is still off sick. But how to ‎calculate the 120 sick days if the employee has offered to return on a part-time basis? This was the ‎question before the Danish Eastern High Court in a recent case.‎

In November 2013, disagreements arose between a dentist and her assistant. The two of them had an ‎argument and the assistant went off sick. The dentist then hired a temp to fill in for the assistant during ‎her sick leave.‎

The assistant contacted the dentist – after just over 1 month's sickness absence – informing her that she ‎would be able to return to work on a part-time basis. But the dentist declined her offer as she needed a ‎full-time assistant. The dentist therefore had to keep the temp until the assistant could return on a full-‎time basis. ‎

In February 2014, the assistant returned to work, but only for a short period of time, as it turned out, for ‎already after 10 days she went on full-time sick leave again. As the assistant had now been off sick for a ‎total of 122 days, she was dismissed with the reduced notice under the 120-day rule. ‎

The assistant and her trade union disagreed as to how the dentist had counted the 120 days. They ‎argued that the period in which the assistant had offered to work part-time should not count as full days ‎of absence, among other things because the dentist's decision to decline her offer to work part-time ‎had not been justified by objective reasons. As the parties were unable to reach agreement, the trade ‎union issued proceedings.‎

OK to decline offer to work part-time
The district court held that the dentist had been justified in declining the assistant's offer to work part-‎time. Accordingly, the period in which the assistant had offered to work part-time should count towards ‎the 120 days. ‎

On appeal, the High Court held that the extent to which the dentist's decision to decline the assistant's ‎offer to work part-time had been sufficiently justified by the employer's circumstances was of no ‎importance in this case as employers are under no obligation to accept an offer to work part-time. In ‎calculating the days of sickness absence under the 120-day rule, the employer was therefore not ‎required to take into account the assistant's offer to work part-time – and the High Court thus affirmed ‎the lower court's judgment.‎

An application to appeal to the third instance was subsequently submitted to the Danish Appeals ‎Permission Board and the Board has now granted permission to appeal – so the case will now go before ‎the Danish Supreme Court.‎

Norrbom Vinding will follow the appeal and report on the Supreme Court's decision.

Norrbom Vinding notes

  • that the judgment of the High Court affirms employers' right to decline an off-sick employee's offer to ‎work part-time – regardless of whether the employer's decision to decline is justified by operational ‎needs; ‎
  • that such an offer from an employee will therefore not be relevant in the calculation of the 120 days ‎under section 5(2) of the Danish Salaried Employees Act; and‎
  • that, as described above, the case is now pending final adjudication by the Supreme Court.‎

The above article is intended for general information only and does not constitute legal advice.

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Termination of employment