Supreme Court ruling on the calculation of sick days

11 April 2024 2 min read

At a glance

  • The Danish Supreme Court has passed a new judgment on the counting and calculation of sick days pursuant to the 120-day rule under section 5(2) of the Danish Salaried Employees Act.
  • The 120-day rule enables an employer to terminate on one month’s notice once an employee’s absence reaches 120 days.
  • The case confirms that to rely on the 120-day rule, the termination must be directly connected to the reaching of 120 days’ sickness absence.

Under section 5(2) of the Danish Salaried Employees Act, it can be agreed through a written contract, that an employer has the right to terminate employment by giving one month’s notice (to end on the last day of a month) if a salaried employee has received sick pay for a total of 120 days within a period of 12 consecutive months. For such a termination to be valid, notice must be given immediately after the 120 sick days have elapsed and while the employee is still unwell.

In a recent case, an employee had taken 120.17 days of sick leave. They then returned to work for several weeks before falling ill again and taking several days’ further sick leave. On the employee’s 123.17 day of sickness absence, the employer issued a termination notice, giving one month’s notice in accordance with the 120-day rule.

The issue in this case was whether the termination notice was issued immediately following the initial 120 days of sickness absence thereby giving the employer the right to terminate the employee’s employment with one month’s notice. The Supreme Court held that it was not. The termination notice was given on the 123.17 day of the employee’s accrued sickness absence and 48 calendar days had passed after the expiry of the 120 sick days. Therefore, the termination was not sufficiently connected to the attainment of 120 days’ of sickness absence; the employee had returned to work after that level had been reached. The employee was therefore entitled to their full notice period.