Member Article

This question was addressed by the Danish Board of Equal Treatment in its decision of 3 March 2016. The Board found that a provision in the staff manual - stipulating the termination of the employment relationship when the employee had reached the age of 70 - could not, as a matter of course, be considered to form part of the specific employment relationship. Therefore, the termination of the employment pursuant to this provision was deemed to be in contravention of the Danish Act on Prohibition against Discrimination in respect of Employment. The fact that no complaint was filed until three years after the termination of employment was not regarded as acquiescence resulting in the forfeiture of claims.

Many companies supplement their employment contracts and/or collective agreements with a staff manual. The staff manual describes the terms and conditions applicable on the workplace, e.g. guidelines and staff policies regarding IT security, smoking policy, etc.

However, do the provisions in the staff manual form an integral part of the contractual basis between the employee and the employer on equal terms with the provisions in the employment contract? This question was addressed by the Danish Board of Equal Treatment in a case involving an employee who was dismissed on the grounds of having reached the age of 70.

In the specific case, the staff manual of the enterprise stipulated a compulsory retirement age of 70 years. However, the employment contract of the employee concerned did not provide that she would only remain employed until the end of the month in which she attained the age of 70.

Therefore, the employee claimed that she had been discriminated due to age in that she had been dismissed with direct reference to her age.

The Board of Equal Treatment stated that a provision in the staff manual regarding compulsory retirement could not without further agreement be regarded as a part of the specific employment relationship. Therefore, the Board found that no agreement on compulsory retirement at the age of 70 existed between the company and the employee, for which reason the dismissal was in contravention of the prohibition against discrimination due to age.

Almost three years passed from the dismissal of the employee until the Board of Equal Treatment received the complaint regarding the dismissal. In this period, the employee had tried to find an affordable manner to conduct the case. Immediately after the termination of her employment, she had thus been in regular contact with the Danish Ministry of Employment, her union, and the Danish Board of Equal Treatment.

The Board of Equal Treatment pointed out that there was no statutory deadline for bringing complaints before the Board. Based on the employee's information in this respect, the Board confirmed that she had not displayed acquiescence resulting in the forfeiture of claims.

The decision shows that provisions in a staff manual do not as a matter of course form an integral part of the employment contract. If the company wants the contents of the staff manual to be binding on the employees, this must be directly stated in the employment contracts - either by copying the text of the staff manual into the employment contracts or by making a direct reference to the staff manual in the contracts. Furthermore, the decision shows that the requirements are not overly strict in relation to the level of activeness of the person filing a complaint to avoid acquiescence resulting in the forfeiture of claims. For the sake of good order it is pointed out that as of 1 January 2016 it is no longer permitted to stipulate a particular retirement age - neither in the staff manual nor in the employment contract.