On 22 November 2017, the Danish Supreme Court has passed two new judgments[1] regarding the counting and calculation of sick days pursuant to the rule re. 120 sick days rule in the Danish Salaried Employees' Act.

The 120 sick days rule

The 120 sick days rule appears from section 5 (2) of the Danish Salaried Employees' Act, and generally it implies that if a salaried employee or an employee of a similar type has been sick for 120 days within a period of 12 months, the company may terminate the employment to expire at the end of a month with a notice of one month regardless of the notice period otherwise applicable pursuant to section 2 of the Danish Salaried Employees' Act to the employee in question. The effective date of termination will therefore be the last day of a month regardless of the date of the notice of the termination. If an employee is given notice due to the 120 sick days rule on e.g. 5 April, the effective date of termination will be 31 May.

The company may only apply the 120 sick days rule if it appears directly from the employee's employment contract.

Facts of the cases in brief:

In the first case, B was in 2013 employed with A for 32 weekly working hours. In two periods during 2013 she was sick part of the time to varying extents, and in November 2013 she was given the shorter notice of termination pursuant to section 5 (2) of the Danish Salaried Employees' Act.

The question for the Danish Supreme Court was whether the two periods during which B was sick part of the time should be included in the calculation of the 120 sick days pursuant to section 5 (2) of the Danish Salaried Employees' Act, including especially whether Sundays, bank holidays and other days off should be included in the calculation.

In the other case, D was employed full time with C and had a sick leave starting in November 2013. In December 2013, D offered to return to work 20 hours per week, which offer was rejected by D with reference to the daily operations of the clinic. In March 2014, she was given the shorter notice of termination pursuant to section 5 (2) of the Danish Salaried Employees' Act.

The issue for the Supreme Court was inter alia whether the period during which D had been at the disposal of C to work part time should be included in full or only proportionally in the calculation of the 120 sick days pursuant to section 5 (2) of the Danish Salaried Employees' Act.

The judgments of the Supreme Court

In the first case A was of the opinion that an "average" method should be applied to the calculation of the number of sick days as to the periods during which B was sick part of the time. According to this method, the number of sick days is calculated on the basis of the sickness absence hours' share of the weekly working hours multiplied by 7 weekdays so that days off and weekend days are included in the calculation.

With reference to inter alia the fact that neither the wording nor the purpose of section 5 (2) of the Danish Salaried Employees' Act provides sufficient basis, the Supreme Court established that the calculation of a part time absence period due to sickness may not include anticipated "actual absence time" covering Sundays, bank holidays and other days off. Only the actual sickness absence may be included in the calculation of the 120 days as to a part time sickness absence period, and the absence periods may be either one or more entire absence day(s) during a week or part(s) of one or more weekly working days.

On the basis thereof, the Supreme Court finds that in the weeks during which B was part time absent due to sickness – initially one day per week and subsequently two days per week – only the sickness absence days may be included in the calculation of sick days according to the 120 sick days rule.

The Supreme Court thus upheld the verdict of the Danish High Court, Eastern Division, U2016.3182Ø.

In the other case, the Supreme Court found that an employer is not obliged to accept that a salaried employee who is incapacitated part of the time due to sickness works reduced hours. It was thus up to the employer's to assess whether an employee working only part time was sufficient whether or not the employee offers to work (part time).

The Supreme Court thus finds that an employer's rejection to an offer from the salaried employee to work reduced hours during a sickness period cannot entail that the period for which the employee is remunerated during the sickness absence is not included in full in the 120 days of remuneration during a sickness absence period pursuant to section 5 (2) of the Danish Salaried Employees' Act.

The Supreme Court then found that the requirements for terminating B giving shorter notice of termination pursuant to section 5 (2) of the Danish Salaried Employees' Act were met as there should be no deduction of the period for which the employee had actually offered to work.

Furthermore, the Supreme Court remarked – with reference to judgment U2015.3301H – that a termination pursuant to the 120 sick days rule in general is considered as sufficiently reasoned to the effect that only in exceptional circumstances a compensation for unfair dismissal pursuant to section 2b of the Danish Salaried Employees' Act may be awarded.

Bird & Bird's comments:

Bird & Bird remarks that the Supreme Court in other words just upholds what we already know and there is actually "nothing new under the sun".

The Supreme Court emphasises, however, with judgment no. 2 the extent of the employer's managerial right, i.e. even if an employee who is absent due to sickness offers to work part time, the employer is not obliged to accept such offer if the reasons for the rejection are based on the daily operations of the company.

Furthermore, judgment no. 2 supports that such a rejection will not influence the calculation of the 120 sick days.

Additionally, it may be concluded from judgment no. 1 that only actual absence may be included in the 120 sick days in relation to part time sickness periods.

For both judgments, it is also relevant to notice that a dismissal in pursuance of the 120 sick days rule will generally not per definition be considered as an unfair dismissal pursuant to section 2 b of the Danish Salaried Employees' Act.