The Supreme Court was to decide whether it is possible - when concluding an employment contract - to agree to depart from the holiday notices rules in section 16 (1), cf. section 21 (2) of the Holiday Act in connection with a notice period when the notice period has not been actualised at the time when the employment contract is concluded.
The company and the employee had agreed as follows in the employment contract:
"Notice of holiday: It has been agreed under section 21 of the Holiday Act that the Employee may be ordered take to his principal holiday, by the Employer giving 1 month’s notice, and his remaining holiday, by the Employer giving 2 weeks’ notice. It has also been agreed that the Employer may give notice of the principal holiday to be taken in a notice period, also with 1 month's notice."
The Holiday Act provides that the employer shall inform the employee as soon as possible when the holiday is to be taken. The employer must give notice no later than 3 months before the principal holiday starts and no later than 1 month before the holiday starts with regard to other holiday days, unless this is prevented by special circumstances.
However, in general, a dismissed employee may not take his principal holiday in the notice period if the notice of termination is three months or less. This applies regardless of what may previously have been stipulated as regards the taking of holiday. It will not apply, however, if the notice of termination has been extended by the number of holiday days.
The Supreme Court's ruling
The Supreme Court agreed with the Maritime and Commercial High Court, which had previously given weight to the fact that the provision on which the case was based was clearly worded and that it was undisputed that the employment contract had been signed by both parties.
Therefore, the Maritime and Commercial High Court did not find that there was any basis for determining that the condition on departing from section 16 (1) of the Holiday Act had not been agreed between the parties.
Referring to the fact that the legislative background of the provision is not to be interpreted restrictively or contrary to its wording, the Maritime and Commercial Court found that it is possible to depart from section 16 (1) of the Holiday Act already when an employment contract is concluded - and therefore also at a time when A had not been dismissed.
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