Terms of employment
The first step in a dismissal situation is to clarify the terms of employment.
Your employee may qualify as a salaried employee (“funktionær”) or the employment relationship may be regulated by a collective agreement or in the employment contract itself.
Your employee is considered a salaried employee if he or she fulfils the requirements of section 1 of the Salaried Employees Act (“funktionærloven”). Among other things, the provision deals with the nature of the employee’s work. Salaried employee status is mainly achieved through commercial and office work, technical or clinical assistance of a non-craft or non-factory nature, or supervision of other’s work.
The legal situation for salaried employees
If the salaried employee has been employed by your company for at least 1 year before the dismissal, the dismissal must be reasonably justified by the salaried employee’s or the company’s circumstances. This follows from section 2 b, subsection 1 of the Salaried Employees Act and entails the requirement for an objective reason for the dismissal.
Such an objective reason can be based on operational or organisational conditions, such as reorganisations, cutbacks or savings. You must be able to prove that the dismissal is justified by these circumstances, including that a reorganisation has the consequence that the employee can no longer be employed.
The legal situation for non-salaried employees
If your employee isn’t a salaried employee, the deciding factors for dismissal can be derived from the collective agreement, the employment contract, or a combination of both.
Most often, the rules set out in the collective agreements will be comparable to those set out in the Salaried Employees Act, which is why a similar assessment, based on the same criteria, will have to be made.
Compliance with the notice period
Regardless of whether the employee is covered by the Danish Salaried Employees Act, it is necessary that a dismissal is made in accordance with the applicable notice period. This is either stated in the Salaried Employees Act, the collective agreement or the employment contract. According to the Salaried Employees Act, the notice period can be between 1 and 6 months, depending on the employee’s seniority.
Determine whether the employee is entitled to severance pay
Under certain circumstances, your employee may be entitled to severance pay in the event of a dismissal. This is stated in the Salaried Employees Act, the collective agreement or the employment contract.
Salaried employees are entitled to severance pay if they have been employed by your company for at least 12 years, cf. section 2 a of the Salaried Employees Act.
Ensure awareness of the Equal Treatment Act and the Discrimination Act
In relation to dismissals, but also employment etc., it is important to be aware of the rules in the Equal Treatment Act and the Discrimination Act. You can for instance not make the dismissal dependent on the employee’s gender, religion, ethnic background, etc.
Do you require further legal advice?
The circumstances surrounding dismissals can be complex and difficult to navigate. It is therefore crucial that a dismissal is made on the right basis and in accordance with the right procedure.
If you are unsure of your legal position, please do not hesitate to contact our office using the contact details provided below.
E-mail: info@virtuslaw.dk
Phone number: +45 53 51 55 00
Website: https://virtusadvokater.dk
