Denmark: Illness and Disability

Introduction

The past year has seen not only the adoption of an important amendment to the legislation governing employees' illness but also the passing of a number of essential judgments concerning illness and disability. This newsletter summarizes the judgments within this field that in our viewpoint are the most important and briefly reviews the new rules allowing the employer to request documentation in the event of illness.

Guidelines on the new sickness benefit rules

Section 36a of the Danish Sickness Benefit Act – "Fit for work certificates"

As described in a former newsletter from July 2009 http://www.gorrissenfederspiel.com/GFKNyheder/Files/Dokument1UK/6.pdf , the "fit for work certificate" (in Danish: was introduced in October 2009 simultaneously with the abandonment of the traditional doctor's certificate on inability to work.

The "fit for work certificate" was introduced in order to reduce the scope of sick days. The certificate consists of two parts: a part to be filled in by the employer together with the employee, and a part to be filled in by the employee's doctor. However, the "fit for work certificate" does not serve the purpose in a situation where the employer wishes proof that an employee on sick leave is legally absent. Consequently, the new rules have generated some uncertainty as to the employer's opportunity to request documentation for sickness as grounds for legal absence.

As a consequence of this uncertainty, the Danish Directorate for Employment Placement and Vocational Training has discussed the need for clarification of these rules with the Confederation of Danish Employers, the National Association of Local Authorities in Denmark, the Organisation of General Practitioners in Denmark, and the Ministry of Health. Against this background, the Danish Directorate for Employment Placement and Vocational Training has prepared a number of memoranda emphasizing that the "fit for work certificate" is to be used to reduce absence due to sickness and to retain employees by allowing for a swift return to the place of work, for instance in connection with long-term illness due to stress or back problems. If it is the object to obtain medical documentation for sickness as legal grounds for absence, e.g. in the event of absence during the notice period, a doctor's certificate (friattest) may instead be issued by the employee's doctor.

This allows employers to request documentation pursuant to employment law principles in the form of a doctor's certificate proving that absence is due to illness.

A doctor's certificate may be used in the following situations:

• The employee declines to participate in interviews with the employer.
• The employee is absent due to illness during a notice period.
• The employee is absent due to illness during a holiday period.
• The employee often calls in sick for one day at a time.

The company must prepare a written and informed request for a doctor's certificate that the employee will present to the doctor. Requests for a doctor's certificate with reference to company procedures or company policy are very likely to be rejected.

Interesting decisions

Pregnancy-related illness

On 11 January 2010, the Western High Court of Denmark passed a judgment of fundamental importance concerning the scope of protection afforded to pregnant employees against dismissal. The judgment meant that an employer, who was ignorant of the fact that his employee was pregnant, was ordered to pay compensation corresponding to 6 months' salary for dismissal contrary to the Danish Equal Rights Act.

The case concerned a pregnant social and health care assistant. She was dismissed a month well into her trial period due to excessive absence – a total of 5 days. The High Court found that three of the sick days were due to pregnancy-related illness, and that one day the employee had had to leave work for the same reason. In addition, she had had one day's absence due to her child's first sick day.

When the case was considered by the City Court, the employer was acquitted on the grounds that the employer had no knowledge of the pregnancy at the time of dismissal; hence, the pregnancy could not be the reason for the dismissal.

The judgment passed by the High Court was significantly different and involved a very clear ratio decidendi. The High Court attached great importance to the fact that 1) the employee was pregnant; and 2) that a part of the sickness absence cited by the employer as reason for the dismissal in fact was pregnancy-related. Dismissal cannot under any circumstances be based on absence due to pregnancy-related sickness.

The judgment should not be seen as an expression that it is impossible in reality to dismiss women of childbearing age without subsequently risking judgment and liability for considerable compensation. The employer's problem in this case was the background for the dismissal, and that is the reason he was liable for compensation. If, for instance, the employee had been dismissed due to abolition of the post, the employer had hardly been held liable for compensation considering that he had no knowledge of the pregnancy.

This once again shows with all clarity that the grounds for dismissal stated by an employer are of the utmost importance: If an employee is dismissed on the grounds of absence due to sickness, and it subsequently turns out that a part of the absence was due to pregnancy-related illness, compensation will be awarded regardless of whether the employer knew of the pregnancy. No relevance will be attached to the employer's ignorance of the pregnancy, and the fact that a reversed burden of proof applies to matters concerning pregnant employees further enhances this fact. This means that the employer – in spite of not having knowing of the pregnancy – must satisfy the burden of proof and show that he did not dismiss the pregnant employee due to her pregnancy. As this is a case of general public importance, permission has now been given to refer the case to the Supreme Court.

Illness during holiday

According to the Danish Holidays Act, an employee is under no obligation to take holiday if the employee falls ill before working hours on the first holiday, whereas the employee is obliged to take the holiday planned if the employee falls ill during the holiday.

A judgment passed by the Court of Justice of the European Union, (the Court) on 10 September 2009, however, may impact on the above principle. We have therefore included below a brief description of the judgment and its impact on the Danish Holidays Act.

The case referred to the Court concerned a Spanish employee who had planned to take holiday in the period 16 July 2007 to 14 August 2007. Following an industrial injury on 3 July 2007, however, the employee was unable to go work until 13 August 2007 and therefore unable to take his holiday. The employee asked his employer to allocate to him a new holiday period, but the employer rejected this request.

The question of whether the employee was entitled to replacement holiday was brought before a Spanish court of law that referred the matter to the Court as the right to holiday is governed by an EU Directive (2003/88). According to the directive, all employees are entitled to at least 4 weeks of holiday with pay a year.

The Court held that all employees in the EU are entitled to at least 4 weeks of paid holiday a year, and that this is a particularly important principle considering the recreational objectives of the holiday. In addition, the Court stated that this principle does not exclude the possibility that an employee under national law forfeits the right to holiday if it has not been taken within the holiday year, provided that the employee actually did have the opportunity to exercise the right. This also means that an employee cannot forfeit his holiday entitlement if it has not been possible for him to exercise his right due to illness.

The Court then held that:

The judgment is surprising as the only issue referred to the Court was that of whether the directive provided for a right to replacement holiday in the event of temporary inability to work as a result of illness occurring prior to the date fixed for the start of the holiday.

The Court's decision can be read as reaching further than the question referred for ruling; therefore, employees are entitled to replacement holiday irrespective of whether the illness occurs before or during the holiday as the Court in its conclusion attaches importance to the fact that the employee was ill "during his annual holiday".

A committee appointed by the government with participation by the social partners is to make an assessment of the judgment's implications on the Danish rules on holiday. Due to the uncertainty in the wake of the judgment passed by the Court, it is to be expected that the judgment will trigger the initiation of a number of cases in Denmark concerning an interpretation of the Holidays Act with regard to illness contracted during holiday.

Currently, the legal position is rather uncertain. Therefore, we recommend that professional advice be obtained in each specific situation where an employer is met with a claim for holiday compensation as a result of illness contracted during holiday.

Employees with disabled family members

It cannot as such be deduced from the Danish Act on Prohibition of Discrimination on the Labour Market that the Act offers protection against discrimination of an employee with a disabled family member. However, both the Court and the Danish courts have determined that protection under the Act may extend to include family members of a disabled person.

In a Danish case, a woman lived alone with her 12-year old son. The woman was hired by a company in the autumn of 2006. In the autumn of 2007, her son was diagnosed with a chronic disease that could be characterised as a physical disability. Due to his disease, the boy needed to undergo further examinations involving hospitalization which meant that the woman would be absent from work for a period of up to two weeks.

On 22 November 2007, the woman informed her employer that she needed time off in connection with her son's hospitalization. On 27 November 2007, the woman maintained at a meeting with the company's CEO that it was necessary for her to get time off in connection with the hospitalization. At the meeting, the CEO encouraged the woman to call in sick which she did the very same day. The next day the woman was dismissed without grounds.

Subsequently, the company stated that the dismissal was due to a decline in turnover. However, out of the company's approx. 100 employees, the woman was the only employee to be let go due to the decline in turnover.

In the light of the short time span between the woman's son being diagnosed with a physical disability and her dismissal, and taking into consideration that the company's decline in turnover did not result in general measures being taken, the court found that the actual circumstances gave reason to presume that the woman had been discriminated against based on her son's physical disability.

As a result of the particular rules governing the burden of proof in discrimination cases, it was now for the company to prove that this was not the case. As the company failed to satisfy this (difficult) burden of proof, the court concluded that the woman had been discriminated against due to her son's physical disability.

The court awarded the woman a compensation corresponding to six months' salary. Taking into account that the woman at the time of dismissal had 14 months' seniority, the compensation awarded corresponds to the award that would normally be given to an employee dismissed during pregnancy or parental leave in contravention of the Gender Equality Act. Compensation in discrimination cases, however, appears to be determined based on a more concrete assessment of the case and without the compensation being determined on the same one-sided basis of the employee's seniority.

The judgment was passed by the Court in Sønderborg, and an appeal has been lodged with the Danish High Court where it will be heard on 8 June 2010. Regardless of the outcome of the High Court judgment, however, it can be concluded - based on judgments from the Court of Justice of the European Union in similar cases - that employees with disabled family members also enjoy special protection under the Act on Prohibition of Discrimination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.