A sales rep was not entitled to pay during her notice period because she was on parental leave at the time of notice.
Under the Danish Salaried Employees Act, employees who qualify as salaried employees are entitled to full pay during the notice period if they are given notice while they are pregnant or within 14 weeks after the child is born. If they are given notice while on parental leave – that is, after 14 weeks after the child is born – they are not entitled under the law to pay during the notice period. But is that okay? That was the question before the Danish Eastern High Court in this case.
A sales rep with a cosmetics business was given notice due to a business restructure. At the time of notice she was on parental leave and was therefore not paid during the notice period.
The sales rep did not believe that this was right and contacted her trade union. Together, they sued her employer, claiming full pay during the notice period among other things. She was entitled to this under the Parental Leave Directive, they submitted.
Her employer disagreed, arguing that she could have elected to cut her parental leave short when she was given notice in order to ensure that she would be paid during the notice period.
Not a penny
The Court held that the wording of section 7(4) of the Danish Salaried Employees Act and the explanatory notes to that provision did not entitle the sales rep to pay during the notice period in a situation such as this and that the Parental Leave Directive did not entitle her to pay during the parental leave, either.
In fact, the Directive has left it to the member states to lay down national rules on pay during parental leave. On those grounds, the Court ruled in favour of the employer.
Norrbom Vinding notes:
- that the case shows that neither section 7(4) of the Danish Salaried Employees Act nor applicable EU law can be relied on in support of a claim for pay during the notice period if an employee is given notice after 14 weeks after the child is born; and
- that, in such cases, employees will therefore have to cut their parental leave short if they wish to receive pay during the notice period.