Employment Contract stipulating a Reduced Term of Notice for Main Holiday
31 August 2015
According to the judgement of 7 August 2015 from the Danish Supreme Court, it was acceptable to make an agreement in an employment contract on a deviation from the provisions laid down in Section 16 (1) of the Danish Holiday Act.
Pursuant to the provisions of the Danish Holiday Act, the employer must, as a general rule, inform the employee of the time of the main holiday no later than three months before the commencement of the main holiday period. Furthermore, it follows from Section 16 (1) of the Act that a dismissed employee may not hold the main holiday during the period of notice if the period of notice is three months or less. The question in the present case was whether the general provision of the Holiday Act may be departed from by agreement in the employment contract to the effect that main holiday can be required to be taken with a reduced term of notice in a termination situation.
In the employment contract, the parties had agreed that the employer could notify the timing of the main holiday period with one month's notice. This was also applicable in the period of notice.
However, the employee's trade union was of the opinion that an employee can only waive actualised rights, arguing that Section 16 (1) of the Danish Holiday Act could not already be departed from at the time of conclusion of the employment contract.
Firstly, the Danish Maritime and Commercial Court found that the provision in the employment contract on notification of holiday was clearly formulated and signed by both parties. The Maritime and Commercial Court therefore ruled that there was no basis for establishing that the condition on deviation from Section 16 (1) of the Danish Holiday Act had not been agreed between the parties.
Furthermore, the Maritime and Commercial Court pointed out that the preparatory notes to the present Holiday Act implied a liberalisation allowing the parties to enter into agreements with regard to the Danish Holiday Act. The preparatory notes did not provide any grounds to believe that the provision of the Act on the possibility to deviate from the rules by agreement should be interpreted restrictively and contrary to its wording.
On this basis, the Danish Maritime and Commercial Count found that Section 16 (1) of the Danish Holiday Act could be deviated from already at the conclusion of the employment contract.
The Danish Supreme Court affirmed the ruling of the Maritime and Commercial Court.
The judgment shows that already at the time of conclusion of the employment contract, the employer may agree with the employee that the main holiday can be required to be taken with a reduced notice in a termination situation even if the employee's term of notice of termination is three month or less.
In the employment contract, the parties had agreed that the employer could notify the timing of the main holiday period with one month's notice. This was also applicable in the period of notice.
However, the employee's trade union was of the opinion that an employee can only waive actualised rights, arguing that Section 16 (1) of the Danish Holiday Act could not already be departed from at the time of conclusion of the employment contract.
Firstly, the Danish Maritime and Commercial Court found that the provision in the employment contract on notification of holiday was clearly formulated and signed by both parties. The Maritime and Commercial Court therefore ruled that there was no basis for establishing that the condition on deviation from Section 16 (1) of the Danish Holiday Act had not been agreed between the parties.
Furthermore, the Maritime and Commercial Court pointed out that the preparatory notes to the present Holiday Act implied a liberalisation allowing the parties to enter into agreements with regard to the Danish Holiday Act. The preparatory notes did not provide any grounds to believe that the provision of the Act on the possibility to deviate from the rules by agreement should be interpreted restrictively and contrary to its wording.
On this basis, the Danish Maritime and Commercial Count found that Section 16 (1) of the Danish Holiday Act could be deviated from already at the conclusion of the employment contract.
The Danish Supreme Court affirmed the ruling of the Maritime and Commercial Court.
The judgment shows that already at the time of conclusion of the employment contract, the employer may agree with the employee that the main holiday can be required to be taken with a reduced notice in a termination situation even if the employee's term of notice of termination is three month or less.
