On our HR Law Hotline, CfL helps companies with their personnel matters every day. Often, cases end up in a situation where the HR department must expend unnecessary resources on damage control because problems were not handled in time—or perhaps even handled incorrectly.
By Dorte Solholt, Head of HR Law at CfL, May 2023
Meeting-related issues cost both in terms of management and financially, leaving scratches on the company’s reputation, and they might have been avoided if the manager had possessed greater knowledge of HR law.
Managers do not actually have to love law. Sometimes, less is more.
However, many managers could greatly improve in fulfilling their managerial duties – both in conflict-laden situations with collaboration problems, poor performance, or excessive absenteeism, as well as in daily interactions with employees. This would free up all the energy currently tied up in a lack of knowledge, conflict aversion, and inertia, so that it can be channeled into proper leadership and operations.
The prerequisite for defining and carving out your own managerial space is a fundamental understanding of managerial rights and what they entail, as well as a basic knowledge of HR legal rules. Not in minute detail – those should be left to HR – but sufficient knowledge of employees’ rights and obligations.
And last but not least – decisiveness. When an employee is underperforming, constantly complaining by the coffee machine, has excessive unscheduled absences, works too much, refuses to take on new tasks, or appears stressed, it must be addressed. Often, the greatest managerial sin is not doing anything.
To better equip managers, CfL has developed 12 good HR legal tips – ready to be added to your toolbox. In this article, we elaborate on them further. These tips are free to use, but only in CfL’s version and with our logo.
Your managerial right stems from the company’s right to manage.
The company’s right to lead and allocate work is a fundamental principle in the Danish model – the way our labor market functions in Denmark.
The Danish model is based, among other things, on the preference to allow the labor market’s parties to agree on the applicable rules rather than legislating them. This is achieved, for example, through tripartite negotiations where the government, trade unions, and employer organizations come together to seek solutions to the challenges facing the labor market—sometimes under heavy pressure from the EU’s massive influence on Danish law.
Managerial rights date back over 100 years to the so-called September Settlement of 1899, when the employer side recognized employees’ right to organize while the labor movement committed to respecting the company’s right to manage and allocate work – also known as managerial rights.
The elements of managerial rights include:
Of course, managerial rights are not without limits. There are collective agreements, occupational safety laws, anti-discrimination rules, data protection regulations, etc., that must be followed, and new limitations are continually introduced.
How far your managerial rights extend, and which decisions you can make independently, always depends on the mandate given to you by the company. If in doubt, discuss it with your own manager or HR.
And remember that managerial rights impose obligations – on the board, executive management, and the individual manager. You are not always free to choose your battles.
The framework for the employment relationship
The right to lead and allocate work is based on the employment contract between the company and the employee. The parties have entered into an agreement:
You should know the most basic rules governing the employment relationship. For example, what are the prohibited criteria when hiring, adjusting salaries, or dismissing employees? Who decides when the employee can take vacation or work from home? And is it acceptable to contact an employee who is on sick leave?
No one expects you to know HR law inside and out, but a basic level of knowledge is necessary. Leave the details to HR.
Familiarize yourself with the company’s policies
It is a good idea to familiarize yourself with the company’s employee handbook or personnel policies. If there are general rules on sick leave, vacation, or working hours, it is important that you know them so that you follow the guidelines.
If you are not already acquainted with your HR department, consider booking a meeting with your HR partner and ask:
GDPR
When discussing employee data, distinguish between:
Under the Data Protection Act and the EU’s General Data Protection Regulation (GDPR), the company is obliged to protect the employee’s personal data. This applies during recruitment and throughout and after employment.
Most companies have a data protection policy that you should know. Employee personal data is only lent to you, so it must be handled with care and, for example, never stored in your own “filing cabinets.”.
Remember to document personnel matters. If you have had formal meetings with an employee, promised something, or agreed on a course, make a record (such as minutes or an email) and attach it to the employee’s personnel file.
If a dispute later arises, it is important that the documentation is in order. And if you as the manager cease managing the employee, it is important for the new manager or HR to see what was agreed. However, you may only store the information as long as there is a legitimate purpose.
HR law for leaders is an integral part of the development programme The New Manager, where you'll work with all the key leadership tools and disciplines.
It’s also offered as a standalone course under HR Law for Leaders.
If you work with HR on a daily basis, you’ll likely find the HR Law course particularly relevant.
To better equip leaders, CfL has developed 12 practical HR legal tips – ready to add to your leadership toolbox. In this article, we take a closer look at each one. The tips are free to use, but only in CfL’s version and with our logo.
Overall, it is the company’s responsibility to ensure that work is conducted safely and in a healthy manner – both in terms of employees’ physical health and mental well-being. No one should get sick from going to work.
This responsibility is shared between managers, the occupational health organization, and the employees.
As a manager, you must do your part by creating the conditions for a safe and harassment-free workplace – both in the company overall and within your own unit, with attention to each employee’s well-being as well as the collective.
A harassment-free workplace
No employee should be subjected to abuse at work – neither from managers, colleagues, nor customers.
As a manager, you have a special responsibility to prevent abusive behavior. This includes not only sexual harassment but also other abusive behavior such as derogatory language, bullying, or other forms of harassment.
Familiarize yourself with the company’s policy on this issue and lead by example when it comes to maintaining a respectful tone and behavior toward everyone. Never ignore it when someone crosses the line.
Abusive behavior can be very costly – both in human, economic, and cultural terms, as well as for the company’s reputation. Concrete cases, such as when an employee complains about harassment from a colleague, can be difficult to handle. Therefore, always involve HR as quickly as possible.
The prohibition against discrimination
For many years after Denmark’s accession to the EF, only discrimination based on gender was prohibited. Most managers are now aware of this, although sometimes a frown may appear.
Over the years, more criteria have been added to the prohibition list, and today it is also forbidden to discriminate on the basis of race, skin color, religion or belief, political opinion, sexual orientation, gender identity, gender expression or characteristics, age, disability, or national, social, or ethnic origin.
Increased focus from both employees and their organizations, combined with easy access to file complaints with the Equal Treatment Board, challenges companies – and managers.
Experience from both the board and the courts indicates that besides gender and pregnancy, the criteria of age, disability, and religion most frequently lead to complaints of discrimination.
As a rule, you must not offer employees inferior terms simply because they are employed part-time or on a fixed-term contract.
Experience from many cases shows that companies periodically run into difficulties because they directly reference a prohibited criterion. “We need a younger employee; we cannot adjust your salary because you were on parental leave last year…” and so on.
Both managers and HR must be much more vigilant in sticking to objective criteria such as education, experience, and competencies when evaluating applicants, awarding salary increases, or deciding who can best be let go during downsizing.
The prohibition against discrimination should be ingrained in you.
Der er to love, som du skal være særligt opmærksom på:
The prohibition applies during recruitment, throughout employment, and in dismissal situations.
The rules of the Equal Treatment Act require that the company treats men and women equally. For example, you must not justify rejecting a female job applicant by stating that she is pregnant, or dismiss a new father because it is difficult to manage without him when he goes on paternity leave. A classic example is also failing to invite employees on parental leave to performance reviews or not giving them a salary increase because they are on leave.
The Discrimination Act also includes a prohibition against discrimination. Age is a good example. For instance, you must not advertise a position seeking an employee under 25 years old – instead, describe the necessary experience and qualifications. Nor should you dismiss an older employee in favor of a younger one because the older employee might choose to retire, or because the company wants to prepare for a generational change.
Special note on disability
Disability is a particular criterion to be aware of. In many cases, the company has a special obligation to adapt the job for employees with disabilities.
For example, you must not reject a qualified applicant with a disability simply because it is too troublesome to make the necessary accommodations.
The definition of disability in the Discrimination Act is not entirely unambiguous. In short, it is a chronic or long-lasting functional impairment that means the employee cannot work at the same level as other employees without adjustments to the working conditions. However, such adjustments must never be unduly burdensome for the company.
Always involve your HR department in such cases – for instance, if you need to dismiss an employee due to excessive absenteeism that may be attributable to a disability.
Costs of non-compliance
If you do not adhere to the prohibition against discrimination, your company may be required to pay compensation. This can quickly become very costly, as compensation in dismissal cases typically ranges from 6 to 12 months’ salary on top of the employee’s regular notice period.
We offer to come to you and provide training for a group of leaders or HR professionals who need a deeper understanding of HR law – all at a favourable group rate.
Internal training also has the advantage of giving participants a shared language and common foundation for working with HR law, making it easier for them to support and spar with each other after the course is over.
General principles on working hours
The framework for determining working hours varies from company to company – depending on the contractual basis of each employment relationship. This framework depends, among other things, on whether the employee is covered by a collective agreement or not:
In Denmark, the weekly working hours are not set by law, but in the major collective agreement sectors, a 37-hour work week has been agreed upon. These 37 hours also serve as the basis for rules on unemployment insurance and sick pay.
There is nothing preventing a company not bound by a collective agreement from agreeing on a different number of hours with the employee – or even having no maximum working hours.
Legislation
However, the following applies to all employees:
It can become costly if your company does not comply with the working time regulations. Violations of the working environment rules may result in a visit from the Danish Working Environment Authority and a directive or fine.
In cases of violation of the 48-hour rule, the company may have to pay between 25,000 DKK and 50,000 DKK in compensation to the employee, depending on:
You are responsible for the working hours.
It is the company’s, and thereby also your, responsibility to ensure that the working time regulations are observed.
If the employee’s working hours are directly measurable (e.g., via a time registration system), your task becomes easier. It is much harder to manage for employees who do not have a set maximum working time, work independently and flexibly (at home or remotely), and who, for the benefit of both parties, organize their own tasks.
You might think: “What do I do with that employee who always stays late, is always online, and never takes a vacation?” And perhaps is even financially dependent on the extra hours that do not necessarily contribute to overall productivity.
Although the company’s obligations cannot and should not completely absolve the employee of responsibility for their own working situation, there is only one answer – you must handle it as a manager.
Initially, you can have a conversation and align expectations with the employee, but if that does not resolve the issue, it may eventually be necessary to issue a warning – even if it seems counterintuitive to require an employee to work less.
Planning working hours
As a manager, you must schedule your employees’ working hours and tasks to ensure:
If your company uses time registration, you can monitor working hours there. If not, ensure you have another overview of how your employees work – what tasks they take on, when they arrive and leave, what their calendars look like, whether they take their vacation and compensatory time, when they send emails, etc.
A brief overview of the holiday act
All employees earn 2.08 days of paid vacation per month regardless of the number of hours worked per week, which corresponds to 25 days (or 5 weeks) of vacation per year. Vacation is accrued during the vacation year, which runs from September 1 to August 31. Vacation is taken during the vacation period, which runs from September 1 until December 31 of the following year – i.e., over 16 months.
If an employee has more than 4 weeks of vacation remaining, it can be carried over to the next vacation period if the company and the employee agree. This requires a written agreement before the end of the vacation period on December 31. If the vacation is not carried over, the employee is entitled to have the days paid out after the vacation period expires.
If your company offers a 6th vacation week, extra days off, or similar, these days are not regulated by the Holiday Act but by any applicable collective agreement, company policy, or the employee’s contract.
Get a handle on your employees’ vacation
Many companies struggle to manage employees’ vacation balances. Rarely is it because employees do not get enough vacation; rather, some employees actually prefer not to take vacation.
As the vacation period comes to an end and everyone should have taken or at least planned their 5 weeks of vacation, unused vacation days often accumulate. For some, it is a hoarding mentality – the thought of many extra days in their vacation account is appealing on cold winter evenings. Others simply do not like being away from work. In many cases, it is because the employee does not have time to take vacation – or at least perceives it that way.
Vacation planning is an important managerial task – both to ensure that employees get the opportunity to disconnect and to ensure that operations are affected as little as possible. It is also crucial because the company risks financial penalties if vacation accounts are mismanaged, for example, if too much vacation is paid out to employees who would prefer cash to time off.
The Danish Holiday Fund audits a number of companies each year and checks individual vacation balances. If the accounts do not match – for example, because too much vacation has been paid out or vacation days have been omitted – the company may be required to make a payment to the fund.
How to plan vacation
Generally, you should plan vacation in collaboration with your employees, unless the company has a collective holiday shutdown (e.g., during the summer).
If an agreement cannot be reached, the company has the right to schedule vacation within the framework of the Holiday Act. For example, the company may decide that employees are not allowed to take vacation during peak periods, that they must take their main vacation when customers are on holiday, or that all vacation must be taken within the vacation period.
However, general guidelines alone are not sufficient. As a manager, you must ensure that each employee actually takes their vacation in accordance with your company’s vacation policy. If necessary, you can give notice for the main vacation (3 weeks) with 3 months’ notice and for the remaining vacation (2 weeks) with 1 month’s notice.
And remember, the employee is entitled to have any vacation beyond 4 weeks paid out if you have not ensured that all vacation days are either taken or, if company rules allow, carried over to the next vacation period.
“I’m not coming to work today, boss.”
Perhaps you recall the old radio satire “Chris and the Chocolate Factory”? Chris always has the wildest excuses for not quite being able to come to work, yet the good-natured boss always gets Chris to show up. It comes down to two things:
Both elements are crucial in managing sick leave.
Know Your Sickness Absence Policy
When an employee calls in sick, you as a leader should immediately consider what actions to take in the given situation.
According to the Health Information Act, you are not allowed to ask what the employee is suffering from, but you may ask when they expect to return to work. In many cases, the employee will voluntarily share whether they are dealing with a cold, stress, or another illness.
While you have the employee on the phone, you can already begin to discuss next steps, such as:
Are there tasks that need to be handled during the employee’s absence?
When should you speak again?
Should you schedule a sickness absence meeting?
Do you need to request a medical certificate?
Most companies have a sickness absence policy. It typically outlines when the employee and manager should be in contact and how the company handles absence in general.
Always ensure that the absence is correctly registered, and remember—especially for the company’s ability to receive sick pay reimbursement when salary is paid during illness—to pass on the information internally.
Sickness Absence Meeting
According to the Danish Sickness Benefits Act, a sickness absence meeting must be held no later than four weeks after the first day of absence. However, you may request a meeting with the employee at any time. Many companies have internal guidelines specifying when such meetings should be scheduled.
A sickness absence meeting is a personal conversation between the manager and the employee. Typically, the meeting takes place at the workplace, but if the employee is too ill to attend in person, it can be held by phone.
The employee is obligated to participate. If they are unable to do so, you may request a medical certificate confirming that they are too ill to attend.
Be sure to write a summary of the meeting. It provides documentation of the conversation and gives the employee peace of mind by clearly outlining what was discussed and agreed upon. If the situation leads to termination due to excessive absence, these summaries may be necessary to support a lawful dismissal. The summaries should never include sensitive health information or diagnoses.
Medical Certificates
You may occasionally need to request a medical certificate. There are three main types of medical documentation related to illness:
Fit Note (Mulighedserklæring) – Use this when you want to assess when and how the employee can return to work. On page one, you and the employee describe what they can and cannot do, and outline a plan for tasks, working hours, and any accommodations. The employee then brings the form to their doctor, who completes page two with a medical evaluation. This certificate can also be used in cases of recurring short-term absence to help change the absence pattern.
Doctor’s Note (Friattest) – This is used when you need confirmation that the employee is genuinely unable to work due to illness. For example, if the employee cannot attend a sickness absence meeting or calls in sick during a notice period.
Duration Certificate (Varighedsattest) – You may request this when an employee has been off sick for more than 14 days and you need a medical prognosis on how long the absence is expected to last.
The company pays for all medical certificates.
Types of Sickness Absence
Sickness absence can take many forms: short-term absences, regular illness, or long-term sick leave.
You should pay special attention to recurring short-term absence. Is it a sign of poor well-being, absenteeism, or perhaps a problematic absence culture in the team? Address it directly with the individual employee, and consider raising it collectively with the team if there are cultural issues at play.
For long-term absence, it’s a good idea to seek support from your HR department. Long absences may be due to stress, surgery, serious illness, or disability. In such cases, it’s crucial to start an early dialogue, hold regular sickness absence meetings, and potentially create a fit note together with the employee, outlining options for a partial return to work—depending on the individual situation.
No one has intervened
Here is an example of a typical managerial omission:
An employee has been with the company for many years and has been moved from department to department over a long period because collaboration with colleagues is not functioning and because customers have complained about the employee’s demeanor. The employee is abrasive and keeps to themselves at work, and their patience with customers is minimal. The conflict culminates in a violent clash with a colleague and a series of customer complaints, leaving you with no option but to dismiss the employee.
Subsequently, the company receives a claim for 6 months’ compensation for an unjust dismissal and 3 months’ severance pay under section 2a of the Salaried Employees Act (seniority-based compensation), and must go through a lengthy negotiation process with the employee’s union before the case can be settled.
This situation and managerial failure are classic and develop because none of the managers the employee had ever addressed the conflict or enforced the expected standards of collaboration – or, in the end, given the necessary warning that would have made the employee realize the seriousness of the situation and change their behavior, or that might have allowed the employment to be terminated without legal consequences. This is where your managerial duty comes into play.
Do not be afraid to set demands. Many conflicts that, in the worst case, can lead to a breakdown in collaboration are allowed to develop because the manager has not initiated the necessary dialogue. It might be that an employee has begun developing in an unfortunate direction – for instance, experiencing collaboration or performance issues or excessive absenteeism. You can often start by having a conversation with the employee in which you:
Do not be afraid to set demands regarding performance or behavior in the workplace. And if the situation escalates, you must address the conflict. No manager can avoid conflicts, and as a manager, you do not always choose your battles.
Therefore, never hide your head in the sand—address the conflict in time so that it does not develop into a warning or, in the worst case, a dismissal or even an expulsion. Remember to take minutes of the conversation and attach them to the employee’s personnel file.
“Phew, that’s difficult.”
For most managers, it is uncomfortable to issue a warning to an employee. It can be challenging to reprimand another adult, and many managers find it difficult to work with an employee after issuing a warning.
This is completely natural, but warnings can be necessary for several reasons:
Warnings are typically issued for collaboration and behavior problems, poor performance, excessive absenteeism, or failure to comply with company rules.
If the warning is intended to prompt improvement over time, it should typically include a deadline for follow-up. The length of the deadline depends on the specific situation, but it must give the employee a fair chance to correct the issue.
If the warning concerns that a particular behavior is unacceptable, you must react immediately if the employee repeats that behavior.
A few good tips:
The obligation of loyalty
Loyalty is a fundamental obligation in an employment relationship.
The duty of loyalty means that an employee must not disparage or harm the company, engage in competing activities, or otherwise act against the company’s interests.
For example, an employee may breach their duty of loyalty by speaking negatively about the manager or the company on social media – Facebook, LinkedIn, Twitter, or elsewhere – or in discussions with colleagues or customers. However, note that public employees have broader rights to express themselves than private employees.
Additionally, the employee must not impose competition on the company – for example, by starting a competing business during employment or during a notice period without the company’s consent.
A breach of the duty of loyalty can have consequences for the employment relationship – ranging from a reprimand, warning, dismissal, and in severe cases, expulsion.
All employees are bound by confidentiality regarding matters that, by their nature, should not be disclosed to third parties. Your employees are also subject to the rules of the Marketing Act and the Act on Business Secrets. These obligations apply both during and after employment.
For employees who possess special knowledge about the company’s business affairs, a non-compete or non-solicitation clause may also have been agreed upon, which, in exchange for compensation, limits their ability to engage in competing activities or contact the company’s customers for a period after termination.
Remember that the requirement of loyalty also applies to you. As a manager, you must act loyally and build trust among your employees. You must always be loyal to the company’s decisions – even if you do not agree with them.
When should you dial 112?
Missteps can be very costly – both in managerial and economic terms. Always seek advice if you are in doubt about how to handle a given situation.
Ensure that you get the necessary consultation and involve your own manager and the HR department in a timely manner.
If a conflict, for example, results in an unjust dismissal, if an employee’s working hours spiral out of control, or if you fail to intervene against abusive behavior, it can cost many months’ salary in compensation, damage the company’s reputation, and create unrest among employees.
If your company is a member of CfL, you or HR can call our HR Law Hotline for free advice and assistance immediately. Non-members can subscribe to the hotline.
Disclaimer: This article is not, and cannot, replace legal advice.
Do personnel matters too often take an unfortunate turn, with leaders neglecting necessary actions and HR spending too much time putting out fires?
Good leadership results in fewer conflicts, fewer sick days, and better outcomes.
Understanding the basic legal framework gives leaders greater confidence and courage to take ownership of their leadership responsibilities—and helps them avoid the pitfalls that can be costly on a human, managerial, and financial level.
That’s why we’ve designed a course day that provides your leadership team with the essential knowledge of HR law—along with the right, and the duty, to lead.
About how conflicts escalate through the 7 stages of the conflict escalation model. Read how you, as a leader, can use the model to manage and prevent destructive conflicts in the workplace.