Redundancy during parental leave approved by High Court

Denmark's High Court ruled in March 1998 that people taking extended periods of leave are not protected against dismissal. Trade unions fear that the ruling will entail more redundancies among their members on parental leave.

A recent Danish court case concerned a 30-year-old woman who was made redundant by her employer after having taken 52 weeks of parental leave. The trade union representing the woman - the Union of Commercial and Clerical Employees in Denmark (Handels- og Kontorfunktionæernes Forbund, HK) - subpoenaed the company concerned, claiming a violation of the act on parental leave. HK argued that employees are protected against dismissal during the whole period of parental leave. The principal question raised by the case was whether the Act protects employees against dismissal when their parental leave is extended from the statutory 26 weeks to the additional period of a further 26 weeks, based on agreement with the employer.

On 20 February 1997, the City Court ruled in favour of HK, stating that the legal protection against dismissal during the statutory 26 weeks of parental leave applies equally to the extended, agreement-based period of parental leave (another 26 weeks).

Danish Commerce and Service (Dansk Handel & Service, DHS), the employers' organisation representing the company, appealed against the ruling to the High Court (Øster Landsret), which on 4 March 1998 overruled the City Court's ruling and acquitted the company. The Court stated that the legal protection against dismissal and reversal of the burden of proof apply only during the statutory 26 weeks of parental leave, and not in the extended period of leave.

HK fears that the ruling, and the fact that more employers now have become aware of this issue, will entail more redundancies among people returning from extended leave. HK therefore advises its members to safeguard themselves by securing written agreements with their employers, ruling out redundancy. Although a study conducted in spring 1997 by HK shows that its members are very pleased with parental leave schemes, they call for more flexible arrangements, whereby the unfortunate correlation between the length of parental leave and the risk of becoming unemployed is avoided (DK9802156N).

The Danish Employers' Confederation (Dansk Arbejdsgiverforening, DA) is pleased with the ruling, but does not anticipate that employers will voluntarily sign an agreement stating that no dismissal will take place during the leave. In the view of DA, people on leave should be at the same footing as other employees, and protected by the same rules on dismissal.

Parental leave in Denmark may be given for consecutive periods from 13 to 52 weeks. Employees have the right to leave for 13 weeks (26 weeks if the child is under one year old). The remaining period of 26 weeks is subject to agreement with the employer (TN9801201S). In the autumn of 1997, 15,000 out of 19,000 persons on parental leave chose to extend their leave up to 52 weeks. Since 1994, some 7% of HK's female members (more than 17,000 people) have been on parental leave. HK has approximately 353,000 members of whom 264.000, or 75%, are females.