Attending a family celebration while on sick leave did not justify summary dismissal - but could justify termination
A labor arbitration ruling dated 23 September 2026, addressed whether an employer was justified in dismissing a shop steward who attended his grandmother’s 80th birthday party while on sick leave. A few days earlier, the employee had been denied time off for the event, which raised suspicions that the sick leave was not genuine.
However, the arbitrator found that the employer had not met the burden of proof that the employee was not sick. The dismissal was therefore unjustified. At the same time, the arbitrator found that terminating the employee’s employment would have been justified and based on compelling reasons.
The case concerned sick leave following a denial of time off
The case involved a shop steward employed by a municipal emergency response service. On 1 March 2023, the employee requested time off from a scheduled 24-hour shift to attend his grandmother’s 80th birthday celebration. The request was denied.
The evening before the shift, the employee called in sick. The next day, he attended the birthday celebration, where he was observed by a colleague. The employer subsequently determined that the employee was not actually sick but had used the sick leave to attend the event. On that basis, the employee was dismissed for unauthorized absence.
There was no basis for a summary dismissal
The arbitrator found that the circumstances of the case gave rise to a reasonable assumption that the employee was not actually sick. In his assessment, the arbitrator placed particular emphasis on the fact that the employee had been denied time off for the birthday a few days before calling in sick, that he called in sick immediately before his shift, and that he subsequently attended the birthday.
However, the arbitrator noted that participation in the birthday event did not in itself prove that the employee could perform the physically demanding on-call duties. Furthermore, it could not be ruled out that the employee had in fact been ill and that the illness was still present at the time of the event.
Furthermore, the arbitrator emphasized that the employer had not obtained a medical certificate, even though doubts had arisen regarding the validity of the sick leave. It was therefore not proven that the employee had been absent without a valid reason, and the dismissal was thus unjustified.
Termination of the shop steward would have been justified
Although the dismissal was overturned, the arbitrator found that a termination with notice would have been justified and based on compelling reasons.
The arbitrator emphasized that the employee’s attendance at the birthday party after the denial of time off gave the employer a legitimate reason to question the validity of the sick leave.
Furthermore, the arbitrator found that the employee had not cooperated in good faith in clarifying the matter. Among other things, it was noted that he did not provide a detailed account of his attendance at the birthday party in his response to the hearing, and that his statement during the arbitration proceedings – that he had only attended for 15-20 minutes – was not accepted as credible. After reviewing the evidence, the arbitrator concluded, on the contrary, that he had remained at the birthday for a significantly longer period.
As a shop steward, the employee held a position of special trust, and therefore special requirements regarding loyalty and the provision of accurate information could be imposed. The employee’s participation in the birthday, combined with his inadequate and partially untrustworthy explanations, resulted in the arbitrator’s assessment of a serious and objectively justified loss of trust.
On that basis, the arbitrator found that there were compelling grounds for termination, even though the dismissal could not be upheld.
The employee was awarded DKK 147,640 in wages for the notice period, and DKK 41,004 in severance pay, but his claim for compensation for wrongful termination was denied.
Littler notes
The ruling illustrates that a reasonable suspicion of abuse of sick leave is not in itself sufficient to justify a dismissal. The employer must be able to prove that the employee has breached the terms of employment in a manner that justifies dismissal.
The ruling also shows that an unjustified dismissal does not preclude the possibility of an objective basis for termination. Although the employer could not prove that the sick leave was unjustified, the employee’s inadequate and partially untrustworthy explanations had resulted in such a serious breach of trust that there were compelling grounds for termination.
Thus, the ruling underscores the importance of a sufficient evidentiary basis for suspension and simultaneously demonstrates that a union representative’s special protection against dismissal does not preclude termination when there is a serious and objectively justified loss of trust.
At Littler Denmark, we regularly advise employers on sick leave, employee suspensions, terminations, and other complex employment law issues.
You can contact us here.
Disclaimer: The above is not, and cannot replace, legal advice.
Reference to the judgment:https://pro.karnovgroup.dk/b/documents/7001110981
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Bo Enevold Uhrenfeldt
Attorney & Partner
+45 44 14 30 90
