Dismissal with reduced term of notice was in compliance with the 120-day rule

By judgment of 1 November 2016, the Danish Eastern High Court established that an employee's sickness absence was to be calculated as full-time sickness absence in accordance with the 120-day rule, even though the employee had offered the employer to resume work on a part-time basis. As such, the employee had received salary during sickness absence for 122 days, and the employer could rightly terminate the employment with a reduced term of notice pursuant to Section 5 (2) of the Danish Salaried Employees Act.

The case involved a dentist's assistant who had been employed full-time in a dental clinic since 2006. On 1 October 2013, the dental clinic was transferred to a new dentist, and on 8 November 2013, the assistant called in sick after a quarrel with the dentist. On 19 December 2013, the assistant offered to resume work with 20 hours a week as of 6 January 2014. This offer was rejected out of consideration for the operation of the clinic.

After the assistant reported fit for duty and briefly resumed work in the beginning of February 2014, the assistant once again called in sick. On 21 March 2014, the dentist dismissed the assistant with a reduced term of notice of one month on the grounds that the assistant had received salary during sickness absence for a total of 122 days.

The parties agreed that the assistant had received salary during sickness absence for 122 days if the period during which the assistant had offered to resume work on a part-time basis was to be included as full-time sickness absence. However, the assistant claimed that such period of sickness absence should only include the number of hours at which the assistant was incapable of performing her work. As such, the assistant argued that she had only received salary during sickness absence for a total of 108 days at the time of the dismissal and that she was therefore entitled to her full term of notice.

The High Court established that the dismissal could take place with a reduced term of notice under the 120-day rule. In this connection, importance was attached to the fact that in the calculation of the absence days, account should not be taken of the assistant's offer to resume work on a part-time basis and to the fact that the dentist was not obligated to offer the assistant to resume work on a part-time basis. According to the High Court, it was therefore insignificant to the case to what extent the dentist's rejection of the assistant's offer was sufficiently justified by the conditions of the workplace or the consideration for the organisation of the work in general.

The assistant's claim for compensation for unfair dismissal under Section 2b of the Danish Salaried Employees Act was rejected on the grounds that a dismissal pursuant to the 120-day rule is generally considered as a fair dismissal and that there was no information of such very special circumstances that could lead to a different result.

The judgment shows that an employer may reject an offer to resume work on a part-time basis from an employee who is absent due to sickness and that the absence can still be included in the calculation of the 120-day rule as full-time sickness absence. This applies irrespective of whether the employer's rejection of the offer is sufficiently justified by the conditions of the workplace or the consideration for the organisation of the work in general.

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