The summer holiday is near, and we would like to wish our readers a very nice summer and use the opportunity to give you an overview of the legislative measures and recent case law within employment law during the first six months of 2013 . We will also look into the issues that might be in focus during the second half of 2013.

Legislation

The last six months have been quiet with only a few new legislative measures within employment law. Instead, focus has been on ensuring Danish competitive power and initiating measures to prevent social dumping, i.e. that the pay and work conditions of foreign employees are below the usual Danish level. For example, there has been increased focus on the use of labour clauses in public contracts to ensure that the winner of the tender will offer pay and work conditions to its employees matching the conditions applicable to the same type of work within similar trades or industries under the collective agreements.

In March 2013, the Equal Treatment Act was subject to a minor change. The change implemented parts of the EU's new Parental Leave Directive according to which parents are now allowed to work reduced hours or adapt their working patterns when returning from maternity leave. The change does not result in a right for the parents, but only a requirement that the employer must decide on a request and respond to it in writing.

For more information, please see the newsletter of 8 April 2013.

In April 2013, the long awaited bill on the legal position of temps was introduced. The purpose of the bill is to ensure that temps are subject to the same rights as if they were permanently employed directly with the user company. The Temp Act introduces an equal treatment principle to ensure the temps' conditions as regards e.g. pay, holiday, etc. The last part of the Act concerns a number of acts that are to protect against discrimination based on employment form. The bill was adopted on 31 May 2013.

For more information on the bill, please see the newsletter of 11 April 2013.

Case law

Many existing employment law rulings were delivered during the last six months.

In January 2013, four cases concerning discrimination due to religion were presented to the European Court of Human Rights. Two employees were dismissed as they discriminated against homosexual customers and citizens, while two other employees were asked not to visibly wear cross necklaces. The Court found that one of the employees was subject to discrimination against her freedom to manifest her religious faith, while the other three employees' freedom to manifest religious faith had to be deviated from in favour of the employer's considerations for health and safety and the right not to be discriminated against due to sexual orientation.

The European Court of Human Rights is in line with Danish case law, according to which it is possible for an employer to introduce certain limitations as to employees' wearing of religious symbols. At the same time, the Court's decisions confirm that it is possible for an employer to introduce a dress code, but that the dress code must be factual and the rules must be appropriate and necessary (assessment of proportionality).

In the Supreme Court case concerning lapse of redundancy pay to public servants having reached the age of 65, the Advocate-General of the European Court of Justice stated in February 2013 that the age limit of section 32 of the Public Servants Act is contrary to the prohibition against discrimination due to age.

It further appeared from the statement that the arrangement in section 32 of the Act exceeds what is necessary in order to achieve the objective, being that redundancy pay is only paid to public servants who remain available for new positions. The courts have not reviewed whether the public servant wishes to retire or remain available for a new position. The arrangement therefore automatically releases the employer from the obligation to pay redundancy pay as soon as the public servant has reached the age of 65. The statement of the Advocate-Genera is not biding, and a final ruling is still pending.

For more information, please see the newsletter of 21 February 2013.

In April, many existing rulings were delivered. For example, the Supreme Court ruled on 11 April 2013 that an employee could withdraw his own termination after having received the employer's termination as the employee's termination had not been decisive for the employer's actions, even if the employer knew about it.

For more information, please see the newsletter of 18 April 2013.

In April, the European Court of Justice decided on the definitions of the concept "disability" vis-á-vis "sickness". At the same time, the Court decided that reduced hours are one of the adaptation measure that the employer is obligated to offer an employee with a handicap, and that sickness due to handicap is contrary to the Anti-Discrimination Act when included in the calculation of the 120 days when the absence is a consequence of the employer's omission to take appropriate measures.

For more information, please see the newsletter of 16 April 2013.

On 24 April 2013, the Eastern High Court delivered a number of rulings concerning employees' claim for severance pay under section 2a of the Salaried Employees Act. Under section 2a of the Act, an employee being dismissed after 12, 15 or 18 years of employment is entitled to severance pay of one, two or three months' salary. However, the entitlement to severance pay is lost if the employee "receives" state pension or "is entitled to" pension under a pension scheme agreed with the employer if the employee joined this scheme before turning 50.

Common to all the cases was that the employees had been dismissed and were entitled to retirement pension from the employer, but had expressed a wish not to leave the labour market.

The Court found that that section 2a (1), cf. (3) of the Act interferes too extensively with the legitimate interests of this group of employees by not allowing payment of severance pay to an employee, who nevertheless intends to waive such pension for the purpose of pursuing his business career even though he is entitled to retirement pension from his employer. The Court then assessed in each of the 14 cases whether the employees had applied for other work after the dismissal thereby pursuing their business careers. In those cases where the Court found that the employees had pursued their business careers, the employees were awarded severance pay under section 2a of the Act. In the other cases, the Court found for the employers. All rulings were appealed to the Supreme Court, which is expected to deliver rulings in the beginning of January 2014.

For more information, please see the newsletter of 30 April 2013.

On 25 April 2013, the Supreme Court determined that the start-up of own business does not observe the duty of mitigation under section 18a of the Salaried Employees Act and that the employee was therefore not entitled to compensation under the non-solicitation clause. The Supreme Court found that the employee should be considered only to have exploited a modest part of his skills and potential, and that he had therefore observed his duty of mitigation to limit his loss.

The ruling is in accordance with the basic principles of the duty of mitigation previously determined by case law, and at the same time the ruling illustrates that a decision in relation to the question of the duty of mitigation depends on a specific assessment in each case, and that it is essential when making such assessment that the employee has exploited his earnings potential to a sufficient extent.

For more information, please see the newsletter of 30 April 2013.

Tendencies

We expect that also the second half of 2013 will be quiet as regards new legislation and that there will be continued focus on the efforts to prevent social dumping.

In 2012, the EU Commission proposed new rules to protect personal data, and we expect to hear more about this proposal. The purpose of the new rules is to ensure a more uniform enforcement of the rules on the protection of personal data in all member states. The proposal is in the form of a regulation which - as opposed to a directive - is not to be implemented in the national laws of the member states, but has direct effect. The regulation is to replace the present directive on data protection, and by choosing a regulation, it is proposed to abolish the Danish Personal Data Act. The proposal is far from processed, and no expected commencement date is therefore in sight. We will follow the process and inform you as soon as there are any news.

Finally, we expect the second half of 2013 to introduce rulings within discrimination, in particular as regards discrimination due to age and disability. 

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Jonas Enkegaard

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