Termination and Resignation

Termination by the Employer
Most PROSA members are covered by the Danish Salaried Employees Act (Funktionærloven), which includes notice period regulations for termination. The length of the employer's notice period depends on how long you have been employed. Below is a table with the applicable notice periods.

Notice Period according to the Danish Salaried Employees Act

The notice must be given at the end of a month, meaning that the notice period does not start until the month after the employer has given notice. For example, if you have been employed for 5 years and you are terminated on April 17, your last working day would be August 31. Note that a longer notice period may be stipulated in your employment contract. Contact PROSA if you are unsure about the correct notice period.

Trial Period
Your employment contract may specify a trial period. During this trial period, which lasts up to 3 months, your employer can terminate your employment with just 14 days' notice. In this case, the notice period does not run from the end of a month but from the day the notice is given.

120-Day Rule
Be aware of whether your contract includes the 120-day rule. This rule allows your employer to terminate your employment with 1 month's notice if you have been sick for 120 days within 12 consecutive months, regardless of how long you have been employed. The termination must occur very soon after the 120 days and while you are still sick for it to be valid.

There are specific requirements for counting the 120 days and when the notice may be given. You should contact PROSA if you are terminated as part of the 120-day rule.

The Termination Notice
A termination notice must be in writing, although this is only a burden of proof requirement, meaning that a verbal termination is still valid. If there is a dispute about whether or when you were terminated, it is the employer's responsibility to prove that the termination occurred at the specified time.

The employer must give the notice in such a way that it is reasonable to expect that you have received it before midnight on the last day of the month, regardless of whether it is a holiday, weekend, or during your vacation. It does not have to be before 4 p.m. on the last working day of the month.

If the notice is received later than the last day of the month, it does not invalidate the notice but rather means that it takes effect from the day you received it, shifting the termination date accordingly.

Is the Termination Unfair?
Generally, an employer is not allowed to make arbitrary dismissals. Your employer cannot just terminate you because they want to; there must be a valid reason for your dismissal.

As a salaried employee, you are entitled to a reason if you are terminated, giving you the opportunity to assess whether the termination is reasonably justified by the company's circumstances or your own. Contact PROSA if you are unsure whether the termination is reasonably justified.

If your employer does not provide a reasonable justification, you may be entitled to compensation under the Danish Salaried Employees Act if you have been employed by the company for at least 1 year. However, some collective agreements have a lower seniority requirement.

If You Resign
As a salaried employee, you must give 1 month's notice of your resignation to terminate at the end of a month. For example, if you resign on October 3, your last day would be November 30. However, a mutually extended notice period may be agreed upon in your employment contract, which you must then comply with.

If a trial period is agreed upon, you can resign with immediate effect, though a mutually agreed notice period of 14 days may apply.

It is generally a good idea to check your employment contract before resigning to see what specific terms are agreed regarding the notice period.

The Resignation Notice
As with the employer, there is no validity requirement for the resignation notice to be in writing. However, PROSA always recommends a written resignation as you must prove that you have resigned. There is no formal requirement for the content of the notice. It only needs to state: "I hereby resign from my position as of today's date, effective from xx." Ensure your employer acknowledges receipt.

It is important to be aware that your resignation must be received at your workplace before normal working hours end and before the end of the month from which the resignation is to take effect. The resignation should be addressed to your immediate supervisor, but if they are on vacation or otherwise unavailable, it can be sent to their substitute or your supervisor's superior.

Before resigning, be aware that resigning may have consequences for your unemployment benefits, beyond the usual quarantine.

Instant Dismissal
Your employer can only dismiss you for cause if there is gross misconduct in the employment relationship, such as theft, violence, gross disloyalty, or in cases where a previous warning for serious misconduct has been issued, which would result in dismissal if repeated.

Dismissal for cause is serious as your employment and salary stop immediately. If you are unsure whether the dismissal for cause is justified, contact PROSA immediately. It is important to respond quickly to a dismissal for cause.

Suspension and Release from Duties / Garden leave
If you have been terminated or have resigned, you are still required to work during the notice period. However, the employer may choose to suspend or release you from duties if they do not wish to utilize your labor during this period. You do not have the right to be released from duties/garden leave during the notice period; it always requires the employer's consent.

Suspension
Suspension means that you do not have to go to work, but you must remain available during the notice period. This means your employer can call you back to work for specific tasks with reasonable notice – sometimes as short as one day.

While suspended, you will continue to receive your salary as usual. You are also entitled to seek other employment during this time. However, it would require an agreement with your new employer, as you may be called back to work by your current employer, where you must remain available. Therefore, there is a possibility of receiving double salary during this period.

It is important to note that you are still bound by the duty of loyalty, meaning you cannot take employment with competing companies during the notice period.

If you wish to take a vacation during the notice period, you must arrange this with your employer, as you cannot remain available during the vacation. If the employer requires you to take a vacation during the notice period, they must give you notice and comply with the holiday notice rules – read more about taking a vacation during the notice period here. (link skal indsættes)

Release from Duties/Garden leave
Similar to suspension, you are not required to go to work during the notice period, but the difference is that the employer cannot call you back, as you are not required to remain available. You will continue to be employed, receive your regular salary, and continue to be entitled to various benefits or financial compensation for them unless otherwise stated in your employment terms.

When released from duties, you must take all accrued vacation if the holiday notice rules can be observed during the release period. If there are impediments to taking a vacation, such as illness, you will not be required to take accrued vacation regardless of notice – read more about taking a vacation during the notice period here. (link skal indsættes)

It is important to note that you are still bound by the duty of loyalty, meaning you cannot take employment with competing companies during the notice period. You would need to resign in the usual way to take up the new position.

When released from duties/garden leave, you can apply for employment with another non-competing company and receive double salary during the release period.

However, there is a rule of minimal compensation, which means you can only receive double salary for the first three months and the ongoing month of your release. After that, your previous employer is entitled to offset your new employer's salary against the salary from them.

There is no rule about double vacation accrual. Therefore, you will only accrue vacation with your new employer (unless your new salary is lower than the previous one, in which case your previous employer must pay the difference in vacation allowance).

Collective Redundancies
If an employer plans to lay off a significant number of employees within a 30-day period, they must comply with rules on notice, negotiation, notification to the local labor market council, etc. These rules are described in the Danish Mass Dismissals Act (lov om varsling mv. i forbindelse med afskedigelser af større omfang). The Act applies if any of the following conditions are met:

• At least 10 employees are to be laid off, and the company usually has 20-100 employees.
• At least 10 percent of employees are to be laid off, and the company usually has 100-300 employees.
• At least 30 employees are to be laid off, and the company usually has at least 300 employees.

The entire process of mass layoffs can be long and complicated. Contact PROSA for advice and assistance with the negotiations.

Severance Agreement

If you have been given notice of termination or there is an imminent risk of termination, there may be an opportunity to negotiate a severance agreement with your employer. Unfortunately, it sometimes happens that employers use the threat of termination to pressure you into resigning.

In such cases, you should never resign on your own, but instead, a severance agreement can be a good alternative.

The most important aspect of such agreements is that you should not be placed in a worse position than if your employer had terminated you.

If there is tension between you and your employer, it might be a good idea to be released from duties/garden leave during the notice period or to leave immediately while receiving compensation equivalent to your salary for the notice period.

There are many possibilities for what such an agreement can include, and PROSA can help you determine what would be best for you. Some specific options could include:

• Employer’s notice period
• Additional months of salary (severance pay)
• Release from duties/Garden leave or suspension
• No offsetting of salary if you find new employment
• Termination of the duty of loyalty, allowing you to take a job with a competing company
• Accrued vacation not taken and paid out as holiday pay
• Retention of salary benefits during the release period
• Waiver of customer, job, and non-compete clauses
• Assistance with your future job search (outplacement programs)
• Payment for courses or certifications

Contact PROSA for assistance in drafting the agreement.

Special Protection

Delegate

As a delegate, you often enjoy special protection in the event of termination. There must be "compelling reasons" for your dismissal. Delegates include shop stewards, health and safety representatives, and employee representatives on the works council (SU) or board of directors.

The Working Environment Act and the Act on Information and Consultation of Employees specify that health and safety representatives and employee representatives enjoy the same protection as shop stewards within the same area.

However, this special protection must be outlined in the collective agreement, a local agreement, or a collective arrangement, such as the cooperation agreement between DA and LO. You do not automatically enjoy protection just because you are a delegate.

Therefore, you should seek clarification regarding the special protection rules that apply to delegates in your area. Feel free to contact PROSA if you have any questions in this regard

The Discrimination Act

The law stipulates that an employer must not discriminate the employees based on their race, color, religion, age, disability, political opinion, sexual orientation, or ethnic, national, or social origin.

This means that your employer must not discriminate against you, either directly or indirectly, in connection with dismissal, among other things.

There are very few exceptions to these provisions, so contact PROSA if you believe you have been subject to discrimination in connection with a dismissal.

The Equal Treatment Act

The law ensures that there is no discrimination based on gender. This law is particularly significant if you are dismissed indirectly or directly because you have informed your employer that you are expecting a child, or you are/have been on pregnancy, maternity, paternity, or parental leave. In such cases, you may be entitled to greater compensation under the Equal Treatment Act.

If you are dismissed in connection with the aforementioned situations, you should always contact PROSA.

Matters Related to Departure

Severance Pay

In addition to your regular notice period, you may be entitled to severance pay if you are dismissed by your employer as a salaried employee. You are only entitled to this severance pay, equivalent to either 1 or 3 months' salary, if you have been employed for 12 or 17 years at the time of termination.

If you choose to resign during the notice period, you will still be entitled to severance pay. However, be aware that if you resign on your own without being dismissed, you will not be entitled to severance pay.

Duty of Loyalty

As an employee, you are obliged to be loyal to your workplace. This means, among other things, that your actions or statements should not harm the company. This is particularly important concerning customers and business partners, but also internally.

The duty of loyalty applies throughout your employment. This means that you must continue to be loyal to the company during the notice period, even if you are suspended or released from duties/garden leave. This is particularly important if you plan to start working for a competing company, which you cannot do without your employer’s consent.

Duty of Confidentiality

Generally, an employee must not disclose information that the employer reasonably has an interest in keeping confidential. The Marketing Act stipulates that you, as an employee, must not disclose or exploit trade secrets that you have become aware of during your employment.

The special feature of this legal provision is that you are bound by the duty of confidentiality indefinitely, even after your departure.

What constitutes trade secrets varies from situation to situation. Generally, it includes non-public information that affects the company's economic competitiveness. This is, of course, a broad concept but can include customer and supplier relationships, strategic plans, production methods, financial matters, market analyses, etc.

Additionally, further details on the scope of the duty of confidentiality may be specified in your employment contract, employee handbook, or similar documents.

As a union representative (shop steward, safety representative, SU representative, and employee representative on the board), you often have access to confidential information about the company's financial matters. It is therefore important to be particularly careful about what information is shared with the other employees you represent.

Breaching your duty of confidentiality can have serious employment consequences, ranging from warnings to dismissal, depending on the severity of the breach. Furthermore, the provision in the Marketing Act is penalized, and you may be required to pay compensation to your employer if they can prove a loss.