11 July 2013

Employment News Jan-Jun 2013

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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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