What is the 120-day rule?

The 120-day rule is a key tool for employers dealing with long-term or recurring sickness absence. However, it is also one of the most technical rules in Danish employment law, where correct timing and documentation are crucial. In this guide, we provide an updated and practical overview of how the rule works, the conditions that must be met, and the common pitfalls to avoid.

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.

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 does not necessarily have to be included directly 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 rolling 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, although this always depends on the specific case.

Still on sick leave at termination: The employee must still be on sick leave at the time of termination. If the employee has returned to work, the rule cannot be applied unless a new period of sickness occurs and the total again reaches 120 days within 12 months.

How to count to 120 sick days

Supreme Court rulings have shown that counting to 120 sick days is more complex than it may seem. When calculating the total number of sick days, several factors must be taken into account:

• 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: Must be converted into full days based on hours worked. For example, if an employee was scheduled to work 7.4 hours but was absent for 4 hours due to illness, the absence corresponds to 4/7.4 of a sick day.
• Workplace injuries: Sickness caused by work injuries also counts toward the 120 days.
• Disability-related absence: May be included if the employer was unaware of the disability at the time of hiring or has fulfilled the obligation to provide reasonable adjustments. This area is complex and often requires legal assessment. 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 on sick leave and only after the 120th day has been reached. In some cases, an employee who has partially returned to work may still be considered on sick leave, meaning the rule can still apply.

Due to the narrow timeframe 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 errors may result in the dismissal being deemed invalid.

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

If the conditions for applying the 120-day rule are not met, you may still dismiss an employee with high sickness absence. However, the dismissal must then follow the standard notice periods and comply with general requirements of objective justification 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.