The limits of the rule concerning 120 days of sickness

Termination in connection with 130 days' sickness absence could not be effected with a reduced notice under section 5 (2) of the Salaried Employees Act.

Not immediately following the sickness period

Yet another ruling has been passed concerning the application of the rule concerning 120 days of sickness of section 5 (2) of the Salaried Employees Act. The Western High Court has just decided whether termination in connection with an employee's sickness absence, in whole and in part, for 13o days was made immediately following the expiry of the 120 days of sickness. The Court found that this was not the case.

It may have had an effect on the ruling of the Court that the parties disagreed on the employee's number of sick days for the last 12 calendar months. The employee was of the opinion that he had had more than 136 sick days, while the employer claimed that the employee had had 126 sick days. The Court found that the employee had been absent due to sickness "for at least 130 days".

The Court found that the notice of termination was not to be considered given immediately following the employee's absence for 120 days, and the reduced notice was therefore not applicable.

By this ruling, the limits of the rule concerning 120 days of sickness are becoming relatively fixed according to case law. In 1973, the Supreme Court found that an employer could apply the reduced notice on 13 January as the employee had on 5 January been absent due to sickness for 120 days. The Supreme Court noted that "it is predominantly alarming to determine that the notice of termination was not given immediately following the expiry of the 120 days of sickness".

Findings

The limit as to the application of the rule concerning 120 days of sickness will therefore still be termination due to sickness absence for 125 to 130 days. The limit depends on a specific assessment in each situation. Decisive as to whether a notice of termination is given immediately following the expiry of the 120 days is whether the employer – after the expiry of the 120 days – has had the time to establish whether the conditions for termination are present and whether it has been possible to assess internally whether to terminate the employee compared to the fact that the termination cannot be postponed beyond the number of days that this may reasonably be expected to last.

It is therefore still quite relevant to register the sick days of the employees on a current and consequent basis, and for the HR department or the administration to determine the procedures in connection with employees who are long-term sick with the result that a decision to terminate with a reduced notice under section 5 (2) of the Salaried Employees Act is made immediately following the expiry of the 120 days of sickness.

It is also important that the employer decides whether to apply the options of the Act concerning termination with a reduced notice in case of long-term sickness (120 days) as the application of this rule has to be agreed between the parties in advance – usually in the employment agreement.

During the sickness absence, the employer must hold personal interviews etc. In our newsletter of 16 March 2010, we gave an account of prospect statements, personal interviews, retaining plans etc.

The content of this Newsletter is not, and should not replace, legal advice.

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Jonas Enkegaard

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Marianne Lage

Partner