New Supreme Court judgment on the calculation of sick days according to the 120-day rule

In a recent judgment, the Supreme Court has just considered whether days off work, weekends and public holidays are to be included in the calculation of absence due to sickness on a full-time basis.

The 120-day rule in outline
The following appears from s. 5(2) of the Danish Salaried Employees Act (funktionærloven)

"However, it can be agreed by written contract in each individual case that the employer is entitled to terminate the employment by giving one month's notice to expire on the last day of a month if the salaried employee has received pay during sickness for a total of 120 days during a period of 12 consecutive months. In order for such termination to be valid, notice must be given immediately after the expiry of the 120 sick days and while the salaried employee is still sick, whereas the validity of the termination is not affected by the salaried employee having resumed work after the date of notice."

It is not considered in the Salaried Employees Act or its travaux préparatoires how the 120 days according to s. 5(2) are to be calculated.

In case no. 1951.166 SH in the Danish Weekly Law Reports it was concluded that an employer was entitled to include all days – also calendar days and thus not only working days – in the calculation of 120 days of absence due to sickness for an employee absent on a full-time basis. With the judgment in case no. 1998.737 V in the Danish Weekly Law Reports it was established that also days off work (Saturdays, Sundays and public holidays) could be included in the calculation of the 120 days if the employee had been absent both before and after the period without work.

In connection with the judgment in case no. 2018.815 H, it was held that the developed case law on inclusion of Sundays and public holidays and other days off work in the calculation of sick days does not apply in cases involving absence due to sickness on a part-time basis.

In situations where an employee is given notice with reference to the 120-day rule, the termination will typically be considered to be for good cause.

The case in brief
The case related to an employee who was given notice of termination with reference to the 120-day rule. The employee was employed with 32 working hours per week divided on the first four days of the week such that she worked on Monday, Tuesday, Wednesday and Thursday.

The employee was given a reduced notice of termination of one month. The termination was based on the fact that the employee had been absent due to sickness for 120 days during the past 12 months, see s. 5(2) of the Salaried Employees Act.

The issue in the case was whether Sundays, public holidays and other periods off work during the period where the employee was absent due to sickness on a full-time basis were to be included in the calculation of sick days according to the 120-day rule in s. 5(2) of the Salaried Employees Act, or whether only the actual absence due to sickness was to be included in the calculation. In the specific case, the actual absence due to sickness was the four working days.

The parties agreed that the question as to whether the employer was entitled to give notice of termination with reference to the 120-day rule depended only on whether Sundays, public holidays and other days off work can be included in the calculation of the number of sick days according to s. 5(2) of the Salaried Employees Act in the period during which she was absent due to sickness on a full-time basis.

Supreme Court judgment
The Supreme Court states as follows:

"As stated in the Supreme Court judgment of 22 November 2017 (case no. 2018.815 in the Danish Weekly Law Reports), it follows from the judgment of the Maritime and Commercial High Court of 6 September 1950 (case no. 1951.166/2 in the Danish Weekly Law Reports) that not only working days, but also Sundays and public holidays are to be included in the calculation of the 120 days during periods where a salaried employee is absent due to sickness on a full-time basis. On the basis of this judgment, case law has developed according to which Sundays, public holidays and other days off work are included in the 120 days if the employee has been absent due to sickness on a full-time basis the day immediately before and the day immediately after the day(s) off work. This case law has been observed by the social partners for many years and the statutory provision has not been changed in connection with subsequent amendments of the Salaried Employees Act.”

In continuation of this, the Supreme Court found that s. 5(2) of the Salaried Employees Act was to be understood such that in connection with absence due to sickness on a full-time basis, Sundays, public holidays as well as other days off work may be included in the calculation of the number of sick days if the employee had been absent due to sickness on a full-time basis the day immediately before and the day immediately after the days in question off work.

Accordingly, the Supreme Court upheld the judgment of the High Court.

Comments by Bech-Bruun
It has now been finally established that weekends, public holidays and other days off work are to be included in the calculation of when an employee absent due to sickness on a full-time basis has been sick for 120 days according to the 120-day rule if the employee has been absent on a full-time basis the day immediately before and the day immediately after the days in question off work.

For more information
If you have any questions then please feel free to contact our labour and employment law specialists Lise Lauridsen, Morten Ulrich and Sandro Ratkovic. You are also welcome to get in touch with your Bech-Bruun contact.