Denmark · employment

Opsigelse Under Sygdom: The 120-Day Rule in Denmark

In Denmark, illness is legally recognized as legitimate absence, meaning an employer cannot terminate you with shortened notice without meeting strict legal hurdles. Under Section 5(2) of the Danish Salaried Employees Act (Funktionærloven), the 120-day rule permits termination with only one month's notice, but only if five cumulative conditions are satisfied. If HR miscounts your sick days, serves notice late, or overlooks disability protections, your dismissal may be unlawful.

What the Law Says: Strict Conditions Under Danish Employment Law

In Denmark, salaried employees (funktionærer) enjoy baseline protection under the Danish Salaried Employees Act (Funktionærloven § 5, stk. 1), which establishes that illness is legitimate absence (lovligt forfald). As a general rule, an employer can only dismiss a sick employee using their statutory notice period, which ranges from one to six months depending on seniority. The so-called 120-day rule (120-dagesreglen) under Funktionærloven § 5, stk. 2 is a narrow statutory exception that allows employers to cut that notice period down to just one month, effective at the end of a calendar month.

Danish courts enforce this provision with extreme rigidity. To invoke the 120-day rule legally, your employer must prove that all of the following cumulative conditions have been met: (1) the rule is explicitly agreed upon in writing in your individual employment contract or an addendum; (2) you have received salary during sickness for at least 120 days within 12 consecutive months; (3) the dismissal is served in immediate connection with the expiry of the 120 days (established in Supreme Court practice as generally within 10 calendar days); and (4) you are actively on sick leave at the exact moment the dismissal is delivered.

If your employer violates even a single one of these criteria, the shortened notice is legally void. A generic contract reference to Funktionærloven without specifically naming the 120-day rule is legally insufficient. When HR gets the calculation or timing wrong, you are entitled to your standard contractual or statutory notice pay, alongside potential compensation for unjustified dismissal under Funktionærloven § 2 b.

Common HR Overreaches: Miscounted Days, Pregnancy, and Disability

Employers frequently rush the 120-day tally and make decisive accounting errors. For full-time sick leave, weekends and public holidays can only be counted if you were proven sick on both the preceding Friday and the subsequent Monday. When it comes to partial sick leave (deltidssygemelding), the Danish Supreme Court established in U.2018.815 H that only the actual absent working hours can be aggregated into sick days, and days off cannot be included. If HR simply counted calendar days while you worked reduced hours, their calculation is flawed.

Crucially, certain absences are completely exempt from the 120-day calculation under Danish and EU non-discrimination laws. Under the Danish Equal Treatment Act (Ligebehandlingsloven), absence caused by pregnancy-related illness can never be counted toward the 120 days. Any dismissal based on pregnancy-related sick leave triggers reverse burden of proof and statutory compensation often equal to 6 to 12 months' salary.

Furthermore, under the Danish Anti-Discrimination Act (Forskelsbehandlingsloven) and EU case law (such as the CJEU Ring and Skouboe Werge rulings, cases C-335/11 and C-337/11), if your illness qualifies as a disability (handicap), your employer is obligated to explore and implement reasonable workplace accommodations. If the employer failed their duty of accommodation (tilpasningsforpligtelse), disability-related sick days cannot be tallied to trigger the 120-day rule, rendering the dismissal an act of illegal discrimination.

Challenging an Invalid Notice and Securing Your Compensation

Timing is the most frequent downfall for employers in Danish employment tribunals. Under recent Supreme Court jurisprudence, the employer cannot dispatch the notice before your normal working hours on the 120th sick day have actually concluded. Conversely, if HR hesitates and delivers the notice later than 10 calendar days after the 120th day has passed, they have forfeited their window of 'immediate connection'. Once you return to work—even for one full shift—the employer cannot invoke the rule retroactively; they must wait until a subsequent sick leave period resets the evaluation.

If you receive a termination letter citing the 120-day rule, do not sign any waiver or accept HR's tally as final. You must formally lodge a written reservation disputing the shortened notice and the legality of the dismissal to protect your rights to ordinary notice pay, pension contributions, and § 2 b compensation.

You can use Caunsel to research this rule, save and organize your employment contract, timesheets, and medical records in a secure case, or talk to an independent lawyer to evaluate your options and enforce your financial claims.

Steps

• Locate your original employment contract and verify whether the 120-day rule (Funktionærloven § 5, stk. 2) is explicitly written into your terms, as reference to the general act is not enough.
• Audit your complete 12-month absence record day-by-day, deducting non-qualifying weekends, partial-day discrepancies, pregnancy-related illness, and unaccommodated disability absences.
• Confirm the exact timestamp when the notice was delivered to you: it must have arrived strictly after your normal working hours on day 120 and within the 10-day legal window, while you were still certified sick.
• Submit a formal, written objection to your employer and HR stating that you dispute the validity of the shortened one-month notice period and reserve all rights to standard statutory notice and compensation.

Common mistakes

• Assuming the 120-day rule applies automatically to all salaried jobs without checking for an explicit contractual clause.
• Accepting HR's sick day tally without recalculating partial sick leaves, which can only be counted by actual absent hours under Supreme Court precedent.
• Allowing pregnancy-related illness or unaccommodated disability-related absences to be counted toward the 120-day total.
• Remaining silent or signing a departure agreement without filing a written dispute against the shortened notice period.

Questions people ask

Can my employer dismiss me under the 120-day rule if I have already returned to work?

No. Under Funktionærloven § 5, stk. 2, the dismissal is legally valid only if it is delivered while you are still actively on sick leave. If you resume your normal work duties before the termination notice is served, the employer loses the right to use the shortened notice for that illness period and must await any future qualifying absence.

Do weekends and holidays count as sick days under Danish employment law?

Only under specific circumstances. If you are on continuous, full-time sick leave, weekends and public holidays count only if you were documented as sick on both the preceding Friday and the subsequent Monday. For part-time sickness, non-working days are never included, and only actual lost hours count.

What happens if HR serves the termination notice too early or too late?

The dismissal cannot take effect with the shortened one-month notice. Danish courts hold that notice cannot be delivered before the close of normal working hours on the 120th day, and Højesteret practice establishes that it must generally arrive within 10 calendar days. If HR misses this window, they must honor your full statutory notice period (up to six months).

General information only, last updated 2026-11-06. Caunsel is not a law firm and does not practise law. AI answers and this guide are not legal advice. Verify filings, deadlines, and statutes with a licensed lawyer in Denmark.