Judgment delivered on 23 June 2015
Confederation of Danish Employers acting for Pro Display A/S in bankruptcy
HK Danmark acting for A
The "120-day rule" could be applied in case concerning dismissal of a disabled salaried employee
After having suffered a whiplash injury in a road accident, A was absent from work for three weeks. Following this, she worked full-time for 10 months and then took half-time sick leave on advice from her doctor. During her leave, her work assignments were reduced. Two months later, she changed to full-time sick leave and was off until she was dismissed in accordance with the 120-day rule in Section 5(2) of the Salaried Employees Act.
The Supreme Court found that, at the time of dismissal, she was to be regarded as disabled. However, it had not been established that the employer, who had not been informed of the contents of two specialist medical certificates concerning A's health, knew or should have known that A's illness had resulted in disability. Accordingly, there was no basis for concluding that the employer had failed to observe its accommodation obligations under the Anti-Discrimination Act.
The Supreme Court further held that the prohibition against discrimination on the grounds of disability in the Employment Directive does not preclude application of the 120-day rule. Consequently, A's absence due to her disability could count towards the calculation of the 120-day rule. There was no basis for compensation under Section 2b of the Salaried Employees Act.
The Supreme Court thus reversed the ruling of the Maritime and Commercial Court.