- 18 Aug 2015
- Sabine Buhl Valentiner
The Danish Supreme Court has ruled that the parties may agree already in the employment contract to depart from the general rule of the Danish Holiday Act governing notice of main holiday.
Under the Danish Holiday Act, employees are generally entitled to at least 3 months' notice of their main holiday (three consecutive weeks to be taken during the summer) by their employer before it is to be taken. S. 16(1) provides that an employee under notice cannot generally be required to take his or her main holiday if the notice period is 3 months or less. S. 21(2) provides that s. 16(1) may be varied by agreement. But what if the parties agree already in the employment contract that the employer is entitled to require the employee to take his main holiday during the notice period at only 1 month's notice – would that be in compliance with the Danish Holiday Act? This fundamental legal question has now been considered by the Danish Supreme Court.
An employee and an employer had agreed in the employment contract that the employer was entitled to require the employee to take his main holiday at only 1 month's notice – and that this shortened notice would also apply in a situation where the employee was under notice. When the employer terminated the employee's employment contract with 3 months' notice, the employee was thus required to take his main holiday during the notice period.
An agreement is an agreement
The employee was not happy about that, and his trade union argued on his behalf that there was no mention in the preparatory notes to the Danish Holiday Act as to when the parties could agree to depart from the general rule of 3 months' notice of the main holiday, and that an employee may only waive actualised rights. The trade union further argued that the clause had been unilaterally agreed by the employer because it had not formed part of the negotiations on employment.
The employer, on its part, argued that the clause was clear and unambiguous and that the employee had been given time to read the contract and consult with his trade union – and that by signing the contract, the employee had accepted the notice entitlement of 1 month. In addition, the employer challenged the contention that only actualised rights may be waived.
The Supreme Court sided with the employer, thus affirming the judgment delivered by the Maritime and Commercial Court, holding that the preparatory notes to the Danish Holiday Act should be taken as reflecting a desire on the part of the legislature for greater freedom of contract between the parties and that there was no justification in the preparatory notes for claiming that s. 21(2) is to be interpreted restrictively and contrary to its wording. Accordingly, the Supreme Court held that employers and employees are allowed to agree already when concluding the employment contract that the employee will be entitled to less than 3 months' notice of his or her main holiday.
Norrbom Vinding notes
- that the Supreme Court has now established that employers and employees may agree already when the employment contract is concluded that the provisions of the Danish Holiday Act on notice of main holiday (including during a notice period) may be varied by agreement.