Proposed amendment to the Danish Holidays Act

Date 10 feb. 2012
Download PDF version PDF

 

On 30 January 2012, the Danish Minister for Employment launched a public consultation on a proposed amendment to the Danish Holidays Act. Notably, the bill contains a provision which grants an employee the right to compensatory holiday in the event that the employee falls ill during holiday. Furthermore, the bill contains provisions on the duty to report information regarding holiday to the income register and rules on concurrent earning and holding of holiday applicable to domestic help and foreign researchers. The focus of this news is solely on the issue of illness during holiday.


Applicable law

Pursuant to the current Danish Holidays Act, illness is considered a so-called holiday obstacle, meaning that the employee is prevented from holding his/her holiday. If an employee falls ill before the planned holiday begins (i.e. before work hours begin on the first day of the holidays), the employee is not obligated to commence the holiday, but may report ill pursuant to whatever regular rules might apply to the individual conditions of employment. This way, the employee may choose to either hold his/her holiday as planned or refer to the illness as a holiday obstacle.


Should the employee choose to refer to the illness as a holiday obstacle, the employee is obligated to arrive at work immediately after being restored to health, unless the employee chooses to hold the remaining part of the holiday. The employee may only hold the remaining part of the holiday and shall not postpone the holiday in continuation of reporting fit for work, unless by explicit agreement with the employer.


In the event that no holiday is held as a result of the illness, a new time must be set for the purpose of holding the holiday, including by giving correct notice. The notice periods may be reduced if it proves necessary in order for the main holiday to be held within the main holiday period (before 30 September).


However, the above is only valid until the commencement of the holiday. In contrast, if an employee falls ill after the holiday has commenced, i.e. during the holiday, it is no longer a question of a holiday obstacle. In short, this means that the holiday must be held, regardless of the illness.


The content of the bill

A ruling from the European Court of Justice in 2009 raised doubts about whether the provisions under the Danish Holidays Act are in contravention of the European directive. The ruling determined that the yearly right to paid holiday was to be seen as a special rule in the social legislation of the Community, and that an employee who falls ill during holiday planned in advance is entitled to hold the holiday at another time, even if it means going beyond the nationally determined holiday period (the reference period). Thus, the Court does not make a distinction of whether the illness occurs before or after the commencement of the holiday.


With the objective of bringing the Danish holiday legislation into agreement with the European directive, the bill contains a provision regarding the employee’s right to compensatory holiday in the event that the employee falls ill during his/her holiday.


According to the Working Time Directive, an employee is entitled to four weeks of paid holiday. Compared to Danish conditions which, pursuant to the Holidays Act, grants an employee the right to 25 holidays, only 20 out of the 25 are protected by the European legislation. Accordingly, the bill contains a proposal to remove the employee’s right to compensatory holiday for the first five sick days of holiday.


To obtain the right to compensatory holiday, it is a condition that the employee reports ill in accordance with the guidelines laid down by the employer, and that the employee submits appropriate proof of the illness. Once the employee has been restored to health, the employee must in principle arrive at work, as the entire remaining part of the holiday is forfeited.


Insofar as the compensatory holiday is concerned, this must be placed and held pursuant to the Holidays Act’s regular rules. In the event that it proves impossible to hold the holiday within the end of the holiday year, it is suggested that the holiday be held during the succeeding holiday year. Under special circumstances, the employee would also be entitled to choose to have the holiday pay disbursed.


The consequences of the amendment

Regarding the issue of illness during holiday, the bill entails, in its current formulation, that illness is compensable, however, at the earliest after the fifth sick day and provided that appropriate notification of illness is given to the employer on the first day of illness. The employee is said to have held holiday on sick days which are not compensable. All subsequent planned holiday lapses and may be held later.


Notification of illness cannot take place retrospectively and therefore, holiday which has already been held is not compensable, regardless of whether the employee was ill or not.


As an example of how to apply the proposed rules, an employee who has earned five weeks holiday is mentioned in the preliminary work. During the summer, the employee holds 15 days holiday, but is ill during two of these. After being restored to health, the employee continues his holiday. During autumn, the employee holds 10 holidays of which he is ill during five. After three sick days during his autumn holiday, the sick days of the employee amount to five days during the holiday year in question and thus, the employee will have the last two sick days during autumn compensated to be held at a later time within the holiday year, provided that the employee has observed the rules on notification of illness.


The new rules are expected to raise doubts, including on the matter of notification of illness, including reporting fit for work, placement of compensatory holiday and the statement of sick days in the event that the employee changes jobs during the holiday year. In such an event, it is our recommendation that legal advice is sought.


 

If you have any questions or require additional information on the Danish Holidays Act or on employment law in general, please contact Partner Claus Molbech Bendtsen (cmb@mwblaw.dk) or Attorney Pernille Nørkær (pno@mwblaw.dk)


The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions or considerations.