Termination of Employment pursuant to the 120-day Rule

Termination of employment pursuant to the 120-day rule had to take place on the 121st day of illness and not on the 120th day of illness. This was the judgment of the Danish Western High Court on 30 January 2014.

The case involved an employee who after a prolonged period of illness had been dismissed pursuant to the 120-day rule stipulated in the Danish Salaried Employees Act. At the end of the same month in which the employee was dismissed, the doctor reported the employee fit for duty. It was uncontested that the notice of termination was served on the 120th day of the period in which the employee was reported ill. Therefore, the question in the matter was whether the notice of termination should be served on the 121th day of illness or whether it could be served during the 120th day of illness.

The City Court found that according to its wording the condition of the 120-day rule stipulating that the employee must have received salary during periods of illness for a total of 120 days was not fulfilled until the employee had been absent due to illness for a total of 120 full days - that is on illness day number 121. The fact that the notice of termination was not served until midday did not lead to another conclusion as it follows from established case law that a salaried employee's absence due to illness for a part of a day is not comparable with a full day's absence. Consequently, the employee had not been absent for 120 full days at the time when notice of termination was served, for which reason the application of the 120-day rule was unjustified. Therefore, the employee was entitled to salary during the entire normal period of notice.

Furthermore, the City Court had regard to the fact that the employer did not ask for further information regarding the date on which the employee could expect to be reported fit for work in spite of the employee's participation in a work capability programme, as well as the fact that the employee was actually reported fit for work later that month. On this basis, the City Court found that the dismissal was not reasonably justified by the circumstances of the employee for which reason the employee was entitled to compensation corresponding to three months' salary for unfair dismissal.

Like the City Court, the High Court found that the conditions for a termination under the 120-day rule were not fulfilled and that the employee was entitled to compensation for unfair dismissal. However, the High Court fixed the compensation at an amount corresponding to four months' salary, taking into consideration the employee's long-standing employment term.

The judgment shows that it is important for an employer to be very accurate about the calculation of an employee's days of illness and that termination of employment at the earliest may take place on the 121st day of absence due to illness.

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