Employer was entitled to set off paid salary against employee's claim for holiday allowance
21 July 2016
This was established by the Danish Western High Court in a judgment of 20 June 2016. The case involved an employee who after long-term illness had been dismissed from her position as deputy manager. However, during the notice period, the employee was reported fit for work by the job centre. This, however, did not change the fact that the employee was still absent from work. Consequently, the High Court found that the employee had been absent from work without good cause. Accordingly, the employer was entitled to set off the salary paid out to the employee during the period in which the employee had been absent from work against the employee's claim for holiday allowance.
The judgment is interesting as an employer is normally not entitled to set off against an employee's claim for holiday allowance. An employer's restricted access to set off against holiday allowance requires that the employee has engaged in unlawful conduct related to his/her employment relationship and that the employee has admitted to the unlawful conduct, or that the unlawful conduct has been established by judgment.
In this case, the High Court took into account that the employee was fit for work from the time that the job centre had declared her fit for work. As such, the employee's absence from work following this date was without cause. Consequently, the High Court found that the absence without cause constituted an act of unlawful conduct relating to the employment relationship.
The employer was therefore entitled to claim back the salary which had been paid out to the employee during the period in which she had been absent from work. As the absence was characterised as unlawful, the High Court found that the employer was entitled to set off the salary paid for the period in question against the employee's claim for holiday allowance and additional holiday entitlements. As such, the High Court upheld the judgment of the city court.
The judgment shows that, irrespective of an employer's restricted access to set off, an employer is still entitled to set off against an employee's claim for holiday allowance if the employee is absent from work without cause and thereby engages in unlawful conduct relating to his/her employment relationship.
In this case, the High Court took into account that the employee was fit for work from the time that the job centre had declared her fit for work. As such, the employee's absence from work following this date was without cause. Consequently, the High Court found that the absence without cause constituted an act of unlawful conduct relating to the employment relationship.
The employer was therefore entitled to claim back the salary which had been paid out to the employee during the period in which she had been absent from work. As the absence was characterised as unlawful, the High Court found that the employer was entitled to set off the salary paid for the period in question against the employee's claim for holiday allowance and additional holiday entitlements. As such, the High Court upheld the judgment of the city court.
The judgment shows that, irrespective of an employer's restricted access to set off, an employer is still entitled to set off against an employee's claim for holiday allowance if the employee is absent from work without cause and thereby engages in unlawful conduct relating to his/her employment relationship.
