20 January 2012

Employment Law News 2011

Dear reader of Employment Law News

2011 introduced some very exciting legislation and case law of which we have regularly informed you in our newsletters (for more information, please see horten.dk/news).

Among the issues on which we have focused in 2011, we have in this Newsletter emphasised on the rulings concerning compensation for insufficient contracts of employment, personal data, sell-back of shares, mental working environment, the new holiday rules, abolition of multimedia tax and compensation in case of discrimination.

Finally, we will try gazing into the crystal ball and the issues that might attract focus in 2012.

We wish you a Happy New Year!

On behalf of the Employment Law Group
Erik Wendelboe Christensen

Compensation for insufficient contracts of employment

As stated in a previous Newsletter, the Supreme Court ruled in three case concerning compensation for insufficient contracts of employment on 17 December 2010. These rulings determined a number of principles when assessing compensation: 1) DKK 0 - 1,000 for excusable insufficiencies, 2) DKK 1,000 - 5,000 for insufficiencies of no specific importance, DKK 2,500 being the base point, and 3) DKK 5,000 - 10,000 for insufficiencies resulting in disputes, the base point being DKK 7,500.

For more information, see our Newsletter of 4 january 2011

A year has passed since these rulings, and during 2011, the Supreme Court's guidelines have been put into practice.

On 14 October 2011, the Eastern High Court fixed compensation at DKK 10,000 as a term in the contract of employment was contrary to mandatory law. The High Court found that the contract of employment was insufficient resulting in a specific dispute or risk for the employee, and the Court therefore fixed compensation at DKK 10,000. The compensation is in line with the Western High Court's ruling of 29 September 2011 where compensation was fixed at DKK 10,000, referring to the risk of a loss and also as the insufficiency had led to a specific dispute. 10.000 med henvisning til risikoen for tab og endvidere til, at manglen havde givet anledning til en konkret tvist.

For more information about the two rulings, see our Newsletter of 21 November 2011

Personal data

Employers should exercise special care when processing employees' personal data. The Personal Data Act prescribes when and how personal data is to be processed, and the employer should be aware of these rules in different situations.

For instance, the employer must pay attention to data disclosed concerning former employees. In 2011, the Supreme Court ruled in a case concerning exchange of data between a former and a potential employer. The former employer was ordered to pay compensation of DKK 25,000 for having disclosed data to a potential employer concerning the employee's suspected alcohol abuse. The Court attached importance to the fact that the employee's consent to the potential employer obtaining information from the former employer did not include a consent to sensitive data being obtained.

For more information, see our Newsletter of 8 June 2011

The Data Protection Agency provides guidelines describing how to process personal data. In 2011, the Agency published some new guidelines concerning the employer's processing of an employee's e-mail account - irrespective of whether the employee has left the employment voluntarily or not.

Sell-back of shares

On 23 June 2011, the Supreme Court set aside an employee's obligation to sell back shares acquired through an investment programme not covered by the Salaried Employees Act or the Stock Option Act. The setting aside was based on section 36 of the Danish Contracts Act.

The ruling is notable as it implies that buy-back schemes may be set aside if – taking the specific circumstances into consideration – it is unfair to maintain the scheme. The Supreme Court attached significant importance to the fact whether the employer or the employee had terminated the employment, and whether there was just cause for the termination.

Mental working environment

On 15 November 2011, the Supreme Court ruled in a case concerning mental working environment where the Court had to decide whether the employee could claim damages from her municipal employer after having developed a mental injury. Once again, the ruling is notable as it is the first ruling in favour of the employee where a confronting course of events resulting in a mental injury results in a claim for damages against the employer.

The employee was employed as a kindergarten teacher on specific terms due to a back injury. In connection with a staff weekend, the collaborative environment at the kindergarten was discussed, including the employee's situation. These discussions escalated, and the head and deputy head of the kindergarten then informed the employee - in front of everybody - that the management had decided to terminate her employment. After this episode, the employee reported sick for mental reasons claiming compensation for pain and suffering due to the irresponsible handling of the staff weekend resulting in a mental injury.

The Court found that the handling of the staff weekend gave rise to liability on the part of the employer and, consequently, the employee was entitled to damages.

New holiday rules

In 2011, the Danish Parliament adopted a number of amendments to the Holiday Act. These amendments came into force on 1 May 2011. The new rules concern, inter alia, limitations of the employer's access to order an employee to take holiday in the period when the employee is released from the duty to work, an extended possibility for the employee to agree on transfer of remaining holiday to the next holiday year and an extended period of limitation and increased control in case the employer does not pay holiday allowance to the employee.

Abolition of multimedia tax

2011 was also the year when a new Government was formed in Denmark, meaning that a number of amendments will be made in certain areas. By now, the Government has already introduced a Bill abolishing the exemption for employer-paid health insurance, the tax privilege concerning employee shares and the multimedia tax.

Instead, the Government re-introduces the tax on free phones.

As soon as the Bill is adopted, we will give you a detailed description of the challenges for both the employer and the employee.

Compensation under the Non-Discrimination Act

The Non-Discrimination Act prohibits direct and indirect discrimination in the labour market due to race, colour, religion or belief, political opinion, sexual orientation, age, handicap or national, social or ethnic origin. The prohibition applies when offering a person a vacancy, when terminating, transferring or promoting employees or when giving salary increases.

If an employee is subject to discrimination, he/she is entitled to compensation. According to case law, the size of the compensation depends on whether the discriminated party is not offered a job or whether he is dismissed.

So far, compensation in case of a candidate not being offered a vacancy due to discrimination has amounted to DKK 25,000.

Compensation in case of an employee being dismissed contrary to the Non-Discrimination Act amounts to three to ten months' salary.

Discrimination due to handicap

In June 2011, the Eastern High Court awarded compensation of five months' salary to an employee with a length of service of 2½ years due to dismissal based on the employee's handicap.

In August 2011, the Maritime and Commercial Court awarded four months' salary to an employee due to the employer's dismissal. After only four days' employment, the employee was dismissed because he suffered from ADHD. When assessing the compensation, the Court attached importance to the length of service.

Discrimination due to age

In two cases, the Eastern High Court has decided on dismissal due to age contrary to the Non-Discrimination Act. In the first case, the employer was ordered to pay compensation of DKK 300,000 to a single employee.

In the other case, the employer had terminated a number of elderly employees due to restructuring. The Court stated: "Subsequently, and based on the fact that they had all worked for the company for more than 25 years, compensation could appropriately be fixed at DKK 200,000."

This compensation was equivalent to seven and ten months' salary.


According to case law concerning discrimination, importance is attached to the length of service of the employee when assessing compensation, but also to the fact that a very short employment may result in significant compensation.

A gaze into the crystal ball - what will have primary focus in 2012?

It is difficult to make predictions, especially about the future! Notwithstanding this significant reservation, there seems to be two areas that will attract focus in 2012.

The mental working environment

With the Supreme Court ruling of 15 November 2011, see above, concerning the mental working environment, an employee succeeded for the first time in claiming that a confronting course of events resulting in a mental injury justified damages from the employer.

As a consequences of the ruling, the press wrote that "finally, things are beginning to move" referring to the court's reluctance to recognise claims for damages based on mental injuries. Whether "things are actually beginning to move", is probably too soon to say, but the ruling has undoubtedly put focus on the consequences under the law of damages of a poor mental working environment. It is natural to assume that especially the employees' organisations will follow up on this in relation to the law of damages, but also in relation to the part of the mental working environment relating to employment law, e.g. equal treatment (sexual harassment) and non-discrimination (ethnic origin, age, handicap, etc.).

HK and DJØF have proposed a special act concerning bullying corresponding to a French proposal containing, inter alia, a shared burden of proof and compensation in the event of bullying/harassment. The proposal seems to break with the basic law of damages in relation to industrial injuries - both with regard to the shared burden of proof and the possibility of compensation - without a financial loss having been suffered.

Whether the proposal - perhaps in an amended version - will one day become legislation is too early to say, but the ruling of the Supreme Court and the proposal indicate a continued focus on the mental working environment in 2012.

Non-Discrimination Act

For many years, the Non-Discrimination Act, including its level of compensation, has been an important subject. As mentioned above, case law gradually seems to emerge.

Prejudicial questions are being submitted to the European Court of Justice concerning e.g.

  • handicap, the construction of the rules concerning 120 sick days, see section 5 (2) of the Salaried Employees Act,
  • whether reduced working hours is a measure which the employer may be obligated to implement under section 2a of the Non-Discrimination Act and article 5 of the Working Directive, and
  • whether an employee, who has a functional impairment, but whose need for compensation consists of reduced working hours, is to be considered handicapped within the meaning of the directive and Act?

There is no doubt that the ruling of the European Court of Justice may be of importance to the Danish construction of the questions raised as was the case concerning claims for severance pay when having been employed for 12, 15 and 18 years under section 2a of the Salaried Employees Act.

It is therefore to be expected that the future will also focus specifically on the construction of the prohibition against discrimination due to handicap and age.

Renewal of collective agreements within the private labour market

Most collective agreements within the private labour market expiring on 29 February are to be renewed in the spring of 2012. The "major settlements" within the industry and transport sector are expected to take place mid-February, while the aggregate negotiations and the proposal of the Conciliation Board are expected at the end of March. We will follow the negotiations and inform you when the results are available. 

New rankings from Chambers

13 March 2018

Chambers, the leading international guide to the best law firms, ranks Horten as one of the best in the country yet again.

On-call duty at home may be working time

26 February 2018

New ECJ verdict: Time where the employee must be available to the employer without being physically present at the work place can be considered working time.

The mandatory nature of the salaried employees act did not preclude an agreement concerning immediate resignation

6 February 2018

The Western High Court has ruled that it was not contrary to the mandatory nature of the Salaried Employees Act or section 36 of the Contracts Act that an employee had concluded a severance agreement concerning resignation without notice.

Unique cooperation between Horten and Symbion

5 February 2018

Horten has entered into unique cooperation with Symbion and Accelerace where we will make a team of lawyers available for start-up businesses at the shared office facilities Horten CoLab.

Ten things to remember when drafting contracts

29 January 2018

A contract is typically concluded for a specific purpose, and thus the parties often forget to regulate other central issues which can subsequently turn out problematic. We take you throigh ten steps that you should always consider when drafting contracts.

Incentive payments for employees

29 January 2018

When you are about to start your own business, it can be difficult to offer a salary that attracts the most skilled employees. Another way to attract employees can be through incentive payment. We have listed the different types of incentive payments.

Nine things to be aware of when employing staff

29 January 2018

We go through a number of focus areas which are useful to know when you are starting up a new business and are considering employing staff.

New Holiday Act adopted

26 January 2018

On 25 January 2018, the parliament unanimously adopted the new Holiday Act. At the same time, the parliament adopted the Act on administration of outstanding holiday pay.

How to prevent and handle sexual harassment at work

5 January 2018

As an employer, you have to be proactive to ensure a harassment-free workplace. We will zoom in on the legal definition of sexual harassment and give you an overview of the employer’s obligations and responsibilities.

New Managing Partner at Horten

2 January 2018

Finn Schwarz, Attorney and Partner, has been appointed Managing Partner of Horten Law Firm as of 1 January 2018.

Clear ruling from the Supreme Court: Compensation for violation of the 48-hour rule

14 November 2017

Recently, the Supreme Court delivered its first judgment in a case concerning the level of compensation for violation of the so-called 40-hour rules of the Working Time Act.

New judgment: Operation manager's sexual harassment did not result in compensation

26 October 2017

Recently, the Eastern High Court ruled that a company was not obliged to pay compensation to an employee even though she had been sexually harassed by the department’s operations manager.

The European Court of Justice: Redundancies - when?

9 October 2017

In two recent cases, the European Court of Justice (ECJ) ruled that an employer should have consulted the employees’ organisations before giving notice of changes that resulted in collective redundancies.

The European Court of Justice: Public servant was entitled to be reinstated in trial position

9 October 2017

The European Court of Justice (ECJ) has assessed that a public servant employed in a trial position as head of department should have been offered the same or a similar position when returning from parental leave, even though the probationary period had expired.

New judgment from the European Court of Human Rights concerning companies’ monitoring of private communication

19 September 2017

The European Court of Human Rights recently ruled that employers must inform employees of the possibility of monitoring and to which extent.

Horten advances in new Chambers and Legal 500 rankings

19 April 2017

In 2017, the leading international ranking agencies, Legal 500 and Chambers, are once again ranking Horten among the best law firms in Denmark.

Conviction in bribery actions against Atea

24 March 2017

The Eastern High Court has delivered convictions in two bribery actions where Atea gave away iPhones, iPads and other IT equipment to two senior employees at the City of Copenhagen and DSB.

Horten advises Burmeister & Wain Scandinavian Contractor A/S on its acquisition of Burmeister & Wain Energy A/S in bankruptcy

8 February 2017

With effect from 6 January 2017, Burmeister & Wain Energy A/S (BWE) was acquired by Burmeister & Wain Scandinavian Contractor A/S (BWSC), which, despite the common name, has had different owners since the 90'ies.

Are you allowed as a governm¬ent official to say that the municipal chief executive's "core competence may not be the truth"?

30 January 2017

According to the Ombudsman, it was in accordance with the rules of government employees' freedom of speech when a municipal employee was given a warning for writing on his Facebook profile that the municipal chief executive was "a person whose core competence may not be the truth".

The Danish state is liable in damages for lack of replacement holiday

23 January 2017

The Supreme Court has ruled that the Danish state is liable in damages for not having made the Holiday Act consistent with the Working Time Directive fast enough in relation to sickness during holiday. However, the Supreme Court ruled in favour of the Danish state as the Supreme Court found that the state was not liable in damages at the time of the employee's sickness during the summer holiday 2010.

Global Leaders in Law appoints Horten as exclusive partner for Denmark

10 January 2017

Global Leaders in Law, the leading global general counsel forum based in London, and Horten has announced partnership. Appointed as a global bronze partner, Horten will sponsor the activities of Global Leaders in Law in 2017.

Trainee could be dismissed before training period started

8 September 2016

In a leading Supreme Court case, the court found that a company could terminate a training agreement before it had begun.

The ombudsman: Dismissal of upper secondary school teacher was contrary to government employees' freedom of speech

5 September 2016

The ombudsman found that it was "strongly criticisable" that Campus Bornholm had dismissed a teacher for having criticised the employer.

Compensation for violation of the principle of equal treatment of the Temp Act

5 September 2016

For the first time, the Supreme Court has ruled on a violation of the principle of equality of the Temp Act.

Compensation for wrongful publication of conviction

5 July 2016

Recently, the Eastern High Court ruled in a case where the housing association AAB had published information on a former voluntary cashier's criminal offenceson the Internet contrary to the Personal Data Act.

New act on e-cigarettes: Obligation to prepare a written policy concerning smoking at the work place

14 June 2016

A new act on e-cigarettes has come into force. The act implies that employers must prepare a written policy stipulating whether and, if so, where e-cigarettes are allowed.

Work permit in Denmark - many schemes will change

9 June 2016

From 10 June 2016, it is no longer possible to apply for a residence permit in Denmark through the Green Card scheme, and the minimum yearly salary required to obtain residence and work permit under the Pay Limit Scheme is abolished.

Legal to prohibit headscarves at the work place? A clarification is on its way from the European Court of Justice

8 June 2016

Recently, the Advocate-General proposed a decision in a case concerning a prohibition against religious symbols at the work place. The proposal may influence ECJ case law in a new direction.

New ratings from the international reference book Legal 500

4 May 2016

There are several good news for Horten in the new rankings, among these to new Tier 1-ratings in Media & entertainment and Telecoms.

Gift policy

3 May 2016

With a conviction of bribery, your company risks having to wave goodbye to public orders due to the rules of the Procurement Act.

The prohibition against discrimination overtrumps due process of law

3 May 2016

In a recent preliminary ruling, the European Court of Justice established that private persons and companies are subject to a prohibition against discrimination due to age based on both a principle of EU law as well as an obligation under a directive

The supreme court: Uncertain whether prohibition against indirect discrimination covers parents with disabled children

29 April 2016

The dismissal of a child-minder on leave to take care of her son suffering from Asperger syndrome was not contrary to the Anti-Discrimination Act. It is still uncertain whether a person covered by the protection criteria is protected against indirect discrimination.

The Western High Court ruled in favour of a former executive officer in text message case

27 April 2016

The Western High Court ruled in favour of a former executive officer, who had violated the provisions on mail secrecy by having read a crane driver's text messages on his work cell phone.

Time barring of industrial injury claims

26 April 2016

The Supreme Court has ruled that claims for compensation for permanent injury under the Act on Industrial Injuries are subject to the general 5-year limitation period - even if the industrial injury did not happen after 1 January 2004.

Dismissal of disabled employee was not contrary to the anti-dicrimination act

14 April 2016

The Supreme Court has ruled in a case as to whether an employee's sympathetic reflex dystrophy was long-term and therefore constituted a disablement within the meaning of the Anti-Discrimination Act.

Renunciation of collective agreement was lawful

11 April 2016

Recently, the Industrial Court accepted that Cimber renounced SAS' collective agreement for cabin crew in connection with transfer of aircraft and staff from SAS.

International women lawyers discuss the future of the legal profession

6 April 2016

Horten participates when 150 lawyers from all over the world meet in Berlin on 7-8 April under the headline "Law in a changing world – how women can contribute to innovation of the legal profession".

Ruling in the Kaltoft case: Employee's obesity was not considered a disablement

31 March 2016

Recently, the Court of Kolding ruled in a case whether an employee's severe obesity was a disablement. The court found that the employee's problems did not constitute a disablement within the meaning of the Anti-Discrimination Act.

Summary dismissal for purchase of mobile tickets for the employer's account

17 March 2016

The Supreme Court has ruled in a case where an employee purchased train tickets for private purposes from his work phone. According to the Supreme Court, the summary dismissal was justified.

Compensation for loss of capacity for work to person close to retirement age

15 March 2016

The Supreme Court has ruled that it is without any importance to the awarding of compensation for loss of capacity for work that the person is may receive state pension within a very short time.

Attorney was not covered by the salaried employess act

5 February 2016

The Eastern High Court surprisingly concluded that an attorney and partner at a law firm did not enjoy employee status and was therefore not covered by the Salaried Employees Act, the Holiday Act or the Contract of Employment Act.

Smoking police/policy - what is the employer allowed to do?

3 February 2016

Two new rulings clarify the scope of the employer's right to lay down smoking policies and impose sanctions in connection with violation of these policies.

Update Employment Law

3 September 2014

No age discrimination

19 December 2011