Thematic feature - individual labour/employment disputes and the courts

This article examines how individual labour/employment disputes are handled through the courts in Denmark, as at March 2004.

In March 2004, the EIRO national centres in 24 European countries were asked, in response to a questionnaire, to give a brief overview of their country's system for dealing with individual labour/employment disputes through the courts, along with data on: the volume of cases; the costs; the timeframe; alternatives to going to court; and any current debate on these issues. The Danish responses are set out below (along with the questions asked).

System

Please give a brief description of how disputes concerning individual employees' employment and labour rights are handled in your country by courts, tribunals or other official judicial bodies.

Denmark has no special labour or employment courts or tribunals to handle cases concerning individual employment/labour disputes. Disputes arising out of individual employment contracts or concerning the interpretation of legislation governing such contracts are dealt with by the normal civil court system. There is a Labour Court (Arbejdsretten) - made up of both professional and lay (ie appointed by employers' associations and trade unions) judges - but this deals only with disputes over collective agreements and related matters, and not with individual disputes.

In employment cases before the civil courts, the plaintiff may seek all the remedies usually available in contract law. This means that, for example: the court may issue a declaration on the rights of the parties; the injured party may rescind the employment contract in the event of a fundamental breach of the contract; or the court may award damages for economic loss and, where there is special provision for such a remedy, also compensation for non-economic loss (eg for injured feelings). Individual employees and employers have the right of appeal to a higher civil court and under certain circumstances to the Supreme Court (Højesteret) (no appeals are possible against Labour Court rulings).

In the normal civil and criminal courts, individual employment law cases must be brought by the employees or employers themselves, and trade unions may not act on an employee's behalf (they are only entitled to bring cases on their own behalf). Unions may bring forward cases concerning collective agreements before the Labour Court, both on their own behalf and on behalf of their members (so a worker's consent is not required for a union to bring a case in its own name).

The only exception to the above system relates to 'statutory civil servants' (tjenestemandsansatte), who - unlike other public employees who, in principle, are subject to the general employment legislation - are a separate category of employees governed by separate legislation, mainly the Crown Servants Act (Tjenestemandsloven). Statutory civil servants may not, for example, take strike action. Individual employment disputes relating to statutory civil servants are dealt with in a special court. Public employers are expected generally to observe the principles of administrative law in relation to their employees.

Number of cases/disputes and costs

How many cases have been dealt with in your legal system by each category of court? Where possible, please provide statistics on the number of disputes in your country each year from 1990 to 2003 (or the latest year for which data are available). Where possible, please provide statistics on costs.

With individual employment/labour dispute cases being heard before the normal civil courts, statistics on the number of such cases are hard to identify, and none are available from the Department of Justice, except that the civil courts dealt with 571 cases related to 'labour market relations' in 2002. The courts are, however, at present introducing an electronic system for registration of judgments.

Litigation timeframe

Where possible, please provide statistics on the timeframe within which court cases over individual labour/employment disputes are settled.

No information is available on how quickly individual disputes are settled.

Other means of resolving individual disputes

Is there any kind of legal mechanism forcing or encouraging the two parties (management and employees) to resolve a dispute by prior negotiation? Where there is such a mediation process foreseen, please give details. Is there any evidence that mediation has had an effect on the volume of claims handled by courts? Are there any corporate policies built into the structure of organisations in your country specifically to deal with disputes? How are the employees’ representative bodies involved in the process?

There is no system of conciliation, mediation or arbitration concerning conflicts relating to individual employment contracts in Denmark.

Debate

Please summarise any current debate on the issue of employment/labour disputes litigated by courts in your country.

For a long time it remained unclear whether a member of a trade union could pursue an individual claim on the basis of a collective agreement. A change to the law in 1997 made it clear that individual trade union members may pursue such a claim if the trade union itself refrains from getting involved in the dispute. In such case, the claim will be pursued before the normal civil courts. This change in the law was seen as necessary in order to comply with Article 6 ('Right to a fair trial') of the Council of Europe's European Convention for the Protection of Human Rights and Fundamental Freedoms. In 1994, the Danish Supreme Court, referring to the European Convention, had ruled that such a 'subsidiary' right existed.

Since this change in the law, the issue of resolving individual employment/labour disputes through the courts has not been the subject of any significant debate. With regard to the Labour Court system for dealing with collective disputes, in general both trade unions and employers' organisations are satisfied with it, seeing it is far more effective and less expensive than the normal courts. (Jytte Kaltoft Bendixen, FAOS)