• Pernille Dalsgaard Jensen
4. term, Laws, Master (Master Programme)
This thesis contains an analysis and discussion of the 120-day rule. With a basis on how you count to 120 days with a part-time sick leave, including the legal position before and after judgements U 2018 815 H and U 2018 822 H.

The 120-day rule gives the employer the opportunity to terminate a salaried employee with a reduced notice of one month, given that the conditions of the Salaried Employee Act § 5, part 2 are met.

Court practice before judgements U 2018 815 H and U 2018 822 U, show that only actual leave can be counted during a part-time sick leave, albeit without the Supreme Court taking a position on work-free days, or whether an employer’s refusal to accept a salaried employee’s offer on working part-time, have any relevance in the calculation of the 120 sick days.

Supreme Court judgements U 2018 815 and U 2018 822 conclude that only actual absence is counted during periods where a salaried employee is on part-time sick leave. Any days that the salaried employee has been working and received salary cannot be counted in the calculation of the 120 sick days. The conclusive element being the fact that the salaried employee has received a salary during sickness, thus making an averaging calculation – where the number of sick hours divided with the number of work hours, notwithstanding the number of work days per week – inapplicable. The employer is also not entitled to count estimated absence for Sundays, public holidays nor any other work-free days.

Judgements U 2018 815 H and U 2018 822 H furthermore concludes that an employer is entitled to reject a salaried employee’s offer of working at a reduced time without giving a specific reason for the rejection. The rejection is without consequence for the calculation of the 120-day rule and the employer is entitled to full reimbursement of sickness benefits according to the Sickness Benefits Act.

Based on an overall assessment, U 2018 815 H and U 2018 822 H are expected to set precedence for the future practice in this area based on the new and clear guidelines as well as the principle nature of the judgements for the calculation of the 120-day rule.
Publication date1 Jul 2018
Number of pages67
ID: 279297403