Dear reader of Employment Law News
The summer holiday is getting closer, and we would therefore like to wish our readers a very nice summer.
The first six months of 2012 included several breakthrough rulings within employment law, whereas this period was quiet when it came to legislation – also within the areas where we expected new legislation.
Employee not entitled to pro rata share of retention bonus
In January, the Supreme Court delivered a somewhat surprising ruling on retention bonus as the Supreme Court found that retention bonus was not covered by section 17a of the Salaried Employees Act. We refer to our Newsletter of 5 March 2012 and to the more detailed review of the ruling and its consequences, which has just been published in our Corporate Newsletter available on our website. The magazine is only available in Danish, but any article may be requested in English.
The liability in damages of employees in case of conduct contrary to the Marketing Practices Act
The Supreme Court delivered another surprising ruling in January as the new employer of an employee was considered to be jointly and severally liable due to conduct contrary to section 1 of the Marketing Practices Act. The Supreme Court found that such liability may be relevant in obvious or gross situations where it should have been clear to the competing company that it would result in unlawful conduct. However, the Supreme Court stated that the fact that the employee at the time of the assistance to the competing company was an employee, and not a trader, results in section 1 of the Marketing Practices Act not having been independently violated by the employee. For more information, see our Newsletter of 5 March 2012.
Employer ordered to pay compensation for dismissal of pregnant employee notwithstanding lack of knowledge about the pregnancy
In February, we were reminded that it is contrary to the Equal Treatment Act to dismiss a female employee due to pregnancy absence. This was in itself not surprising, but the Supreme Court found that the protection against dismissal also applied when the employer was unaware of the pregnancy. At the same time, the Supreme Court opened up the possibility of a "cancellation right" for the employer, and it will be interesting to follow the scope of this "right". For more information, see our Newsletter of 5 March 2012.
Protection against dismissal in case of fertility treatment
The Supreme Court also demonstrated a limit to the extent of protection in connection with fertility treatments as the Court determined that section 9 of the Equal Treatment Act cannot be extended to include the period prior to the commencement of the actual fertility treatment. For more information, see our Newsletter of 17 April 2012.
Compensation to woman dismissed after having claimed equal pay
Finally, the Supreme Court indicated a level as regards compensation for violation of the Equal Pay Act in a case where a woman was awarded six months' compensation due to termination contrary to the Equal Pay Act. For more information, see our Newsletter of 22 May 2012.
Bill on the directive on temporary agency work
As regards legislation, we expected a bill on the directive on temporary agency work which should have been implemented by now, and we would also have preferred an initiative concerning section 2a of the Salaried Employees Act concerning severance pay, where a legislative specification according to the European Court of Justice's rejection of previous Danish case law would remove the Court's current uncertainty.
The next six months
After the holiday, we will be looking forward to another interesting six months. The bill concerning implementation of the directive on temporary agency work is expected to be introduced in the next sessional year of the Danish parliament.
The employee organisations will have more focus on the mental working environment and harassment after the Supreme Court ruling of November 2011, and we expect more cases to come. It will also be easier to have a case heard as the authority of the Board of Equal Treatment has been expanded with the result that the Board is now authorised to hear cases concerning harassment, including sexual harassment. For more information, please see our Newsletter of 7 June 2012.
Discrimination due to age and handicap is still on top of the employment law agenda, and by the Eastern High Court ruling in June 2012 (see our Newsletter of 21 June 2012) reducing compensation significantly in relation to "months of compensation", we keenly await for the Supreme Court to decide whether the level of compensation is to be calculated in months (as for equal treatment) or in "round figures". A decision is probably not to be expected within the next six months. Notwithstanding the level of compensation, the number of such cases will increase. In 2010, the Board heard 23 cases on age discrimination and 10 cases concerning discrimination due to handicap. In 2011, these figures were 55 and 17, respectively, and this tendency will continue in 2012.
We are looking forward to our cooperation for the next six months of 2012.
Have a nice summer!
Erik Wendelboe Christensen
Head of the employment law group