DENMARK Law and Practice Contributed by: Lise Lauridsen and Sandro Ratkovic, Bech-Bruun
Where rules are based on collective agreements, individual cases are normally dealt with by tribunals and procedures set up by employers’ organisations and trade unions themselves, breaches of collective agreements are dealt with by the Labour Court (in Danish: “ Arbejdsretten ”). In alleged cases of discriminatory dismissal, the employee may seek redress through the statutory Board of Equal Treatment (in Danish: “ Ligebehan - dlingsnævnet ”). 9.2 Alternative Dispute Resolution In individual employment contracts, the parties may include an arbitration clause stipulating that any dis - putes will be conclusively resolved through arbitration. The main advantages typically cited for arbitration clauses are the potential for faster proceedings and the resolution of disputes without public exposure. However, arbitration can often be more complex than court proceedings, as arbitration awards are not sub - ject to appeal. Moreover, arbitration can be expensive, as the parties are responsible for covering the costs associated with the arbitration tribunal. Additionally, employees are typically not eligible for legal aid in arbitration cases. Despite the inclusion of an arbitration clause, ques - tions may later arise as to whether one of the par - ties can instead bring the matter before the ordinary courts. Under the rules of the Danish Arbitration Act (in Danish: “ Voldgiftsloven ”), courts are required to dismiss cases that, by mutual agreement, are des - ignated for resolution through arbitration. This provi - sion must be considered alongside Section 21 of the Salaried Employees Act, which stipulates that the Act cannot be modified by agreement to the detriment of the employee. An arbitration agreement may be con - sidered detrimental to the employee’s legal position, particularly due to its financial implications.
Several Danish court decisions suggest that clauses requiring arbitration for disputes concerning the inter - pretation of an agreement do not necessarily preclude claims involving violations of the Salaried Employees Act from being brought before the courts. This deter - mination depends on the specific circumstances of each case, including whether the Salaried Employees Act applies, whether the clause is clear and explicit, and whether it has been clearly agreed upon by the parties. 9.3 Costs The costs connected with a lawsuit in Denmark are: • court fees; • costs connected with the litigation, including preserving evidence – eg, expert opinions, witness fees, translations, etc; and • legal fees. A party must pay all costs connected with a lawsuit, at least until the case has been closed. As part of the judgment, the court awards costs to the winning party. As a general rule, the unsuccessful party must reimburse the other party for all costs con - nected with the lawsuit. In reality, the successful par - ty’s costs are only partly reimbursed, the reason being that only court fees and costs connected with expert witnesses, etc, are covered in full, whereas legal fees – ie, lawyers’ fees – are awarded discretionarily on the basis of the amount in dispute. A party must therefore be prepared to bear parts of his/her own costs, even if the party succeeds in the lawsuit. The court may, under specific circumstances, decide to derogate from the general rule that the unsuccess - ful party bears all costs, for instance, if the case is of general public importance. Another reason could be that both parties are responsible for the dispute lead - ing to the lawsuit.
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