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.