The rules on the protection of health and safety representatives have been updated due to a political agreement on futureproofing workplace health and safety efforts and endeavors to reduce social dumping. The new rules mean that health and safety representatives will be given greater protection.
One of the cornerstones of the Working Environment Act is to create a physically and mentally safe working environment that is at all times in accordance with societal developments and to ensure a basis for companies to try and resolve health and safety issues internally. The new rules will continue to support that aim whilst also giving greater protection to health and safety representatives.
The Working Environment Act provides that companies with 10-34 employees must have a health and safety committee consisting of at least one member of management and at least one elected employee health and safety representative. The committee’s responsibility is to cooperate on matters of health and safety in the workplace.
In companies with 35 or more employees, cooperation must be organized in such a way as to create a multi-level health and safety committee.
In companies with less than 10 employees the starting point is that health and safety matters are managed through continuous and direct contact between management and employees.
Pursuant to the Working Environment Act employers are obligated to ensure that members of the health and safety committee have received mandatory health and safety training and do not suffer a loss as a result of carrying out their health and safety duties.
Health and safety representatives enjoy special protection against dismissal and other detrimental treatment as result of their position in the same way as shop stewards within the relevant or equivalent collective bargaining area. Health and safety representatives are also entitled to the same notice of termination as union representatives in the same collective agreement. The special protection is not dependent on the health and safety representative being a member of a trade union. If a company with no collective agreement wishes to terminate a health and safety representative, an assessment is required on which collective agreement would be relevant if company had been covered by a collective agreement. In this connection the company must adhere to the rules relating to the termination of union representatives as set out in the most relevant collective agreement. The collective agreements usually contain detailed procedural rules to be followed in the case of termination.
In a decision from 2017, the Supreme Court ruled that the special protection of health and safety representatives does apply where the work is not covered by a collective agreement within the relevant or equivalent professional area. In this case there was no relevant collective agreement covering the work that the health and safety representative undertook and therefore the health and safety representative did not enjoy any special protection.
The rules therefore meant that there could be situations in which health and safety representatives did not have special protection against termination where there was no relevant collective agreement.
From 1 February 2024 this has now been changed and the special protection for the safety steward has been inserted in section 10(3) of the Working Environment Act. The rule gives health and safety representatives an extended notice period of 6 weeks in the event of termination as well as protection against other detriments, insofar as there is no other relevant collective agreement to fall back on.
The general legal principle implies that the termination of a union representative (or health and safety representative) can only be justified for “compelling reasons”. The company must therefore prove that there are “compelling reasons” for a termination based on the employee’s circumstances. In a redundancy situation, for example, the health and safety representative must be terminated as the “last among equals”.
The unsuitability of a health and safety representative may, depending on the circumstances of the case, justify dismissal, and the same applies in the case of long-term illness. If the employer is unable to demonstrate compelling reasons for the termination of a health and safety representative a claim for unjust termination and compensation may be triggered.
Historically, compensation levels have been in the range of 4-6 months, but there are more recent cases where the awards have been between 9-12 months’ salary.
In addition to the above the terminology of the Working Environment Act has also been changed so that a gender-neutral term is now used for shop stewards (which formerly were referred to in a male form).
We send out a newsletter when there is current news, events and courses.
Thanks to the following contributors to the website: Steen Evald (photograph), Stine Heilmann (photograph), Count Pictures (video), Kunde & Co. A/S (design), WeCode A/S (coding)