12 July 2012

Summer Greetings from Employment Law

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!

Horten

Erik Wendelboe Christensen
Head of the employment law group

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