- Date:
- 21 Dec 2010
- By:
- Jørgen Vinding
After a long period of confusion about the level of compensation in cases about inadequate statements of employment particulars, the Danish Supreme Court has spoken.
Last autumn, a district court awarded a record amount in compensation for an inadequate statement of particulars. About EUR 13 500 was the award. The case once again threw doubt on the price employers should pay for being careless about statements of particulars. Danish lawyers have therefore awaited last week’s Supreme Court judgment with excitement.
Since the advent of the Danish Statement of Employment Particulars Act in 1993, the Act has given rise to a wealth of lawsuits. Before the Danish Parliament intervened in 2007, even trivial breaches would trigger awards of at least about EUR 700.
Parliament said stop
In March 2007, the Danish Parliament amended the Act to limit awards to a maximum of 13 weeks’ pay in ordinary cases and 20 weeks’ pay in serious cases. It was also specified that the courts had to consider if the breach had had a tangible effect for the employee or not, and that awards should not exceed about EUR 150 in trivial cases.
In March 2007, the Danish Parliament amended the Act to limit awards to a maximum of 13 weeks’ pay in ordinary cases and 20 weeks’ pay in serious cases. It was also specified that the courts had to consider if the breach had had a tangible effect for the employee or not, and that awards should not exceed about EUR 150 in trivial cases.
If the intention of the Danish Parliament was to provide clarification, the amendment of the Act did not achieve the desired effect. Since 2007, case law has pointed in all directions and, in the spring of 2010, a district court awarded 20 weeks' pay in compensation to a waiter who had not been issued with a statement of particulars. In comparison, the High Court has awarded between 2 and 6 weeks' pay.
Supreme Court cuts to the chase
In the three different cases decided by the Danish Supreme Court last week, the awards amounted to about EUR 550, EUR 1 350 and EUR 2 000 for breaches of the Danish Statement of Employment Particulars Act.
In the three different cases decided by the Danish Supreme Court last week, the awards amounted to about EUR 550, EUR 1 350 and EUR 2 000 for breaches of the Danish Statement of Employment Particulars Act.
In addition, the Court laid down a number of assessment principles to apply when setting the level of compensation in cases about inadequate or non-existent statements of particulars:
- If the breach is excusable and has had no tangible effect for the employee, the level of compensation should be about EUR 0 – 150
- For other breaches and in cases where the employer has issued no statement of particulars at all, the level of compensation should be about EUR 350
- In cases where the inadequate or non-existent statement of particulars has given rise to an actual or potential dispute about the employment relationship, the level of compensation should be about EUR 1 000
- In aggravating circumstances, the level of compensation should be 20 weeks’ pay as a maximum. Awards of more than about EUR 3 400 should be reserved for particularly serious cases
Norrbom Vinding notes
- that the Supreme Court has sent a clear signal that the level of compensation awarded by the district courts and the High Court after the amendment of the Danish Statement of Employment Particulars Act was too high; and
- that the Supreme Court is getting closer to the level of compensation that used to apply and which still seems to apply in the industrial tribunal system.
