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You’ve got mail! – Supreme Court judgment
The Supreme Court recently ruled that the conditions of the ”120-day rule” were met when an employer sent a termination letter to an employee by post after the end of the employee’s normal working hours on the 120th day of sick leave.
Written by
Dorthea Bisgaard Vase
Forfattere
An employer may agree with a salaried employee that the employer may terminate the salaried employee’s employment with one month’s notice to the end of a month if they have received pay during sick leave for 120 days in the last 12 consecutive months. In such cases, notice of termination must be given while the salaried employee is still sick and must be given in immediate connection with the expiry of the 120 sick days (the so-called ”120-day rule”).
The case concerned a sales manager who was covered by the 120-day rule. The sales manager’s normal working hours were 8:30 to 15:00. The sales manager was on sick leave, and at 13:42 on the 120th day of sick leave, she received a notification in her PostNord app that the employer had prepared a letter for delivery to her. The letter was sent the same day at 16:41, at which time the sales manager also received a notification from PostNord. Two days later, on the 122nd day of sick leave, the sales manager received the letter giving notice of termination of her employment.
The sales manager then brought a case against the employer, claiming that she was entitled to pay during her normal notice period. In this connection, she stated that, according to the 120-day rule, termination must take place after the 120th day of sick leave has passed. According to the sales manager, the termination should be considered to have been given at the time when the employer registered the letter with PostNord, which was before the end of her normal working hours. Furthermore, the sales manager did not believe that the 120th day of sickness had passed when the termination letter was sent at 16:41, as the letter had been sent on the 120th day of sickness.
The Eastern High Court found in favour of the employer, and our article about the Court’s judgment can be found here. The sales manager then appealed the judgment to the Supreme Court.
The working day had ended
The Supreme Court ruled that, according to its wording, the 120-day rule applies after the expiry of the 120th day of sickness, meaning that the employee must have received pay during sick leave for 120 days before notice of termination is given. The Supreme Court then noted that, as salaried employees receive pay during sick leave, this condition is met after the end of normal working hours on the 120th day of sickness.
The Supreme Court found that it was the time of sending the termination letter that was decisive, not the registration of the letter with PostNord, and since the termination letter was sent on the 120th day of sickness at 16:41, the Supreme Court held that the condition of pay during 120 days of sick leave had been met. The Supreme Court further stated that notice of termination had been given in close connection with the expiry of the 120 sick days and that the sales manager had received the notice of termination on the 122nd day of sick leave when she was still ill.
On that basis, the Supreme Court held that all the conditions for dismissing the sales manager under the 120-day rule had been met, and the Supreme Court therefore found in favour of the employer.
Norrbom Vinding notes:
With this ruling, the Supreme Court has established that the condition of the 120-day rule that the employee must have received pay during sick leave for 120 days is met if notice of termination is given after the end of the employee’s normal working hours on the 120th day of sick leave.
The content of the above is not, and should not be a substitute for legal advice.
Forfattere