With a recent decision, the High Court of Western Denmark considered the issue regarding an employee's notice of termination in a situation where the employee had been allowed to transfer his seniority from his previous to his new employment. As a result, the employee's notice of termination was six months, as his seniority was to be calculated from 1 December 2002.
In addition, according to the employee's employment contract the parties had agreed to a trial period of three months.
The High Court found that the provision concerning a trial period took precedence over the six-month termination period to which the employee was entitled due to the transfer of seniority on employment with the new employer.
The case in brief
The employee had been employed as marketing manager with an independent municipal institution since 2002 and was terminated in 2016 in connection with a management change. According to the employee, the reason for the termination was that the new manager wanted to "set a new team", not including employees who had also applied for the manager's position.
The employee then found employment with another enterprise. In this connection the employee wanted to transfer his seniority from his previous employment, because the employee feared being in the same situation again, as the new employer was also facing a management change.
The employee's new employer accepted this, and in this connection the parties agreed to a three-month trial period. After two months' employment, the employee was terminated with 14 days' notice in accordance with the trial period provisions of the employment contract.
The employee then initiated legal proceedings against the new employer, claiming six months' notice of termination and remuneration pursuant to s. 2 a of the Danish Salaried Employees Act (funktionærloven) and the Danish Act on Employer's Duty to Notify Employees of Employment Terms (ansættelsesbevisloven).
In this connection, the employee argued that the new employer could not terminate him with 14 days' notice since the employee due to the transferred seniority was entitled to a notice period of six months. The employee also relied on the fact that it was not discussed in connection with contract negotiations that the transferred seniority would not apply during the first three months of employment (the trial period).
Against this the employer argued that the trial period provision in the employment contract was clear and highlighted by underlining, and that as such the employer could rely on the provision in connection with the termination.
Decision of the High Court
The High Court found it proved that after initial negotiations between the parties they had agreed to a trial period, which would be the first three months of employment.
In this connection the High Court emphasised that clause 7 of the employee's employment contract (the trial period provision) referred to s. 2(5) of the Salaried Employees Act, which sets out the employee's termination notice during the trial period. The High Court did not in this specific case find cause to derogate from this provision.
The High Court court also found that the fact that the employee according to the parties' agreement was granted seniority from 1 December 2002 (in order to ensure himself the longest possible notice period and best possible salary) could not lead to the employee being entitled to six months' notice during the trial period. According to the High Court, this was clear from the employment contract, which stated that the notice periods set out in the Salaried Employees Act would apply after expiry of the trial period.
Consequently, the company was entitled to terminate the employee in the manner applied prior to expiry of the agreed trial period.
Comments by Bech-Bruun
The decision of the High Court shows that provisions on trial periods in individual employment contracts generally take priority to other provisions on seniority and notice of termination.
Nonetheless, it is important for employers to specify and emphasise in the employment contract that the employer is entitled to terminate the employee during the trial period, regardless whether the employee was allowed to transfer seniority form former employment, so that transferred seniority does not apply until after expiry of the trial period.