In a recent decision, the Supreme Court considered whether the Ministry of Employment was liable for damages regarding replacement holiday. The court found that the Danish authorities had set aside EU law and were liable for damages. However, as the employee's holiday had taken place in 2010 – before the Holiday Act should have been amended – the employee was not entitled to compensation.
The government recently presented its legislative programme for the parliamentary year 2016/2017. The programme contains a number of upcoming proposals for amendments within the area of employment and labour law, including proposed amendments to the Holiday Act, the Childbirth Act, the Public Servants Act, the Working Environment Act and the Vocational Training Act.
A recent Board of Equal Treatment case involved a municipality's alleged discrimination against a disabled employee who was relocated to another flexible job with a reduced salary and later dismissed on the grounds of improving efficiency. The board found that the employee had accepted employment in a new flexible role and that the salary reduction was not an expression of discrimination, but rather a question of applying new rules for flexible jobs.
The Maritime and Commercial Court considered whether a senior employee's claim for a bonus payment under a bonus plan constituted 'salary' as defined in Section 17a of the Salaried Employees Act. The court attached significance to the contents of the bonus plan, the purpose of Section 17a and the wish to counter the risk of circumvention. Consequently, the senior employee was entitled to a direct proportional share of the agreed bonus.
A recent judgment shows that obesity alone does not constitute a disability under the Anti-discrimination Act, but that it may do so in certain special circumstances. Obesity may constitute a disability only if it has been sufficiently documented that physical, mental or psychological impairments or discomfort caused by it prevent the affected employee from fully and effectively carrying out his or her work on an equal basis with others.
The Western High Court recently found that an employer's summary dismissal of an employee was justified due to the employee's non-salaried assignment on the board of directors of a competing company. The decision illustrates that the assessment of an employee's duty of loyalty in connection with a summary dismissal may be more stringent if a competing undertaking is involved.
As expected, the bill for a new act on restrictive employment covenants was recently adopted by Parliament. The aim of the bill is to limit the use of restrictive covenants in order to allow employees to change jobs and make use of their expertise and qualifications with a new employer. Thus, the new rules will apply to all employment relationships that involve restrictive covenants, including with regard to managing directors.
From January 1 2016 it will no longer be possible to maintain individual agreements regarding the automatic termination of an employment relationship due to an employee turning 70. Employers should delete such provisions from employment contracts to avoid the risk of breach of the Act on Employment Contracts and, in the worst case, an order to pay compensation.
An industrial arbitration tribunal recently found that an employee had been disloyal when he carried out work in his own name for one of the employer's customers and had used the employer's premises to that end. The decision is in line with previous case law and as such confirms that carrying out competing business against the employer is contrary to the duty of loyalty.
A bill on restrictive employment covenants was recently revoked due to a call for parliamentary elections. Before calling for the election, the government had introduced a bill that would have gathered all rules and regulations on restrictive employment covenants in one single act. It is expected that the bill will be reintroduced by the new government.
It will be much more difficult in future for Danish companies to make use of special restrictive covenants in connection with hiring employees if a new bill on restrictive employment covenants is adopted. The bill will tighten the rules on the use of non-compete and non-solicitation clauses, while non-hire clauses will be practically prohibited.
The Western High Court recently established that the updating of LinkedIn profiles by two former employees regarding their future employment did not contravene a non-compete clause. Although the judgment provides a certain guiding principle as to the limits of former employees' activities on social media, the nature of the relevant employees' work played a part in the decision.
The Danish government has recently introduced a number of bills that will lead to changes in labour and employment law. The bills propose changes to the Salaried Employees Act, the Anti-discrimination Act, the Holiday Act and the Act on the Labour Court and Industrial Arbitration.
The Eastern High Court recently found that alcoholism is not a disability and that a summary dismissal was justified. The case involved a dental hygienist who was summarily dismissed after causing injury to a patient while cleaning the patient's teeth under the influence.
The Kolding City Court recently referred four questions to the European Court of Justice for a preliminary ruling. The questions included whether a general EU prohibition against discrimination due to obesity exists in the labour market and whether obesity is covered by the concept of disability under the EU Employment Equality Directive and thus also covered by the concept of disability under the Anti-discrimination Act.
The Eastern High Court recently found that a sales consultant did not have the status of a salaried employee. The case involved a woman who had worked as a sales consultant for a period of two months. When the company decided to end their cooperation, the sales consultant made a claim for salary, holiday allowance, mileage allowance and compensation for lack of employment contract.
The Eastern High Court recently held that forwarding confidential emails to a private email account did not constitute an unlawful use of trade secrets, but that termination of the relevant consultancy agreement was nonetheless justified. The court found that the employer had reasonable doubts about the consultant's loyalty and was thus justified in terminating the consultancy agreement.
The Danish Board of Equal Treatment recently established that advertising for "student assistants who would like to earn some money for a year or so before starting further education" constituted a contravention of the Act on Prohibition against Discrimination in respect of Employment. The decision shows that the use of age-neutral criteria may create an assumption of indirect discrimination if the criteria cater for a certain age group.
The Maritime and Commercial Court recently ruled that the recruitment of a large number of employees who immediately before had worked for a competitor contravened the Marketing Practices Act. The case concerned whether a company had violated the act by systematically recruiting a large number of employees from a competitor and subsequently taking advantage of their disloyalty towards the competitor.
The Supreme Court has ruled that a collective agreement's unequal terms and conditions in regard to salary entitlements and termination of employment for people under 18 did not conflict with the EU Employment Equality Directive. The case involved a teenage supermarket chain employee who was paid a lower salary than the supermarket's adult employees and who was dismissed once he turned 18.