What is the 120-day rule?

The 120-day rule allows you, as an employer, to terminate an employee with one month’s notice if the employee has been on sick leave for a total of 120 days within a 12-month period. This rule applies regardless of the employee’s seniority, but a number of specific conditions must be met in order to apply it correctly. 

Navigating the rules regarding dismissal due to frequent sickness absence can be complex - especially since illness is generally considered lawful absence. The 120-day rule can be a useful tool, but it must be applied with caution and precision. Even small mistakes in its application can render a dismissal invalid. Below, we provide a comprehensive guide to help you understand how and when the rule can be used.

What is the 120-day rule?  

The 120-day rule allows an employer to dismiss an employee with just one month’s notice if the employee has been off sick for 120 days in total over a 12-month period. These 120 days do not have to be consecutive, and the 12-month period does not have to align with the calendar year. 

Importantly, while the rule provides a shortened notice period compared to the standard under the Danish Salaried Employees Act, it only applies to employees in the private sector. Public sector employers are not permitted to use this rule.

Conditions for the 120-day rule

To lawfully use the 120-day rule for dismissal, the following five conditions must be fulfilled: 

• Written agreement: The rule must be clearly stated in the employment contract. If not agreed upon in writing, the ordinary notice period applies. While it doesn’t necessarily have to be in the contract itself, the clause must be formally documented. 
• Full salary during sickness: The employee must have received full salary during the entire 120-day sickness period. 
• Sick days within a 12-month period: All 120 sick days must fall within the same 12-month period, though not necessarily consecutively. The period can be a rolling 12 months and is not tied to the calendar year. 
• Timing of termination: Termination must occur immediately after the 120th sick day. A delay may result in the employer losing the right to invoke the rule. A general rule of thumb suggests termination should occur between the 121st and 129.5th day to be considered timely, though this can vary depending on the case. 
• Still on sick leave at termination: The employee must still be on sick leave when terminated. If they have returned to work, the rule cannot be used until a new sick leave occurs, and the total number of sick days within the 12-month period still reaches 120. 

How to count to 120 sick days

Supreme Court rulings have shown that counting to 120 days is more complicated than it may seem. Consider the following: 

• Weekends and public holidays: Count if the employee was off sick both the day before and the day after (e.g., sick on Friday and Monday). This only applies if the employee was 100% sick on both days. 
• Partial sick leave: Partial absences must be converted into full days based on hours. For example, if an employee was due to work 7.4 hours but was off for 4, the absence equals 4/7.4 of a day. 
• Workplace injuries: Sickness caused by work injuries also counts toward the 120 days.
• Disability-related absence: Can be counted if the employer was unaware of the disability at the time of hiring or has met the legal obligation to provide reasonable adjustments. This is a complex area and often requires legal expertise.  You can learn more about how our HR Legal specialists can assist you with such cases.

When should you dismiss the employee?

The dismissal must take place while the employee is still off sick and after the 120th day has been reached. In some cases, an employee who has returned to work on a part-time basis may still be considered on sick leave, allowing dismissal under the rule. 

Due to the narrow window for lawful dismissal - typically between the 121st and 129.5th sick day - employers must act promptly. Accurate tracking and calculation of sick days are critical, as even minor missteps can invalidate the dismissal. 

What if I can't use the 120-day rule?

If the specific conditions for applying the 120-day rule are not met, you may still dismiss an employee with high sickness absence. However, in such cases, the standard notice period must be observed, and the dismissal must meet general fairness and justification requirements under employment law. 

Need guidance? 

If you are unsure how to handle sick leave and dismissals, our HR Legal specialists can help. They have extensive experience in employment and personnel law and can guide you through the legal complexities of the 120-day rule and other termination procedures. 

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