Administrative law principles

Changes in terms of employment

Employment relationships develop over time. Managerial authority means that the management is entitled to make decisions about changes to the organisation, tasks, place of work, reporting relationships etc.

If a management decision is considered a decision within the meaning of the Danish Public Administration Act (Forvaltningsloven), it must be accompanied by (written) grounds, and the employee must be consulted before the decision is made.

If the management makes a decision to change the employment terms, which is of significant importance and unfavourable to the party concerned, it follows from the provisions on consultation in the Danish Public Administration Act that the employee must be given an opportunity to make a statement on the change before it is implemented.

All changes in the employment terms may be implemented without notice if the employee and manager agree.

Examples of management decisions that are decisions within the meaning of the Danish Public Administration Act and may thus only be implemented after a consultation procedure and an individual term of notice include: dismissal, summary dismissal, pay cut, geographical relocation of place of work involving significantly longer travel time, completely new position.

Other decisions may be implemented by the management immediately without justification and without consulting the employee. These include decisions on relocating to a new place of work which is geographically relatively close to the current place of work, a new reporting relationship/manager, new/changed tasks which do not change the nature of the position and organisational changes.

In addition, rejections of applications for pay supplement and usual operational measures (actual administrative activities) do not have to be justified by the management.

Access to personal information

The following only concerns access to information relating to employees’ terms of employment.

The legal basis for this is the Danish Public Administration Act (Forvaltningsloven), the Danish Act on Processing of Personal Data (Persondataloven) and the Danish Access to Public Administration Files Act (Offentlighedsloven).

According to part 9 of the Danish Act on Processing of Personal Data, when the university in connection with HR management registers information about employees, they have a right to be informed of, among other things, which data are being processed and the purposes of the processing.

According to the provisions on access to files by parties to a case (part 4) of the Danish Public Administration Act, if an employee is a party to a case in which a decision is made, the employee may, as a general rule, demand to see the case documents.

An employee is a party to a case if, for example, he or she has been given notice of dismissal or summary dismissal, or if a work-related injury and/or illness has been reported for the employee.

If a third party, e.g. a journalist or a colleague (‘third party’) requests access to information on one or more employees, such request will be processed in accordance with the Danish Access to Public Administration Files Act.

A third party generally does not have a right of access in cases concerning appointment and promotion or in cases concerning the employment of individual public employees.

Information which is available to everyone concerning public employees’ individual employment conditions is information about name, position, education, duties, pay conditions and official travel.

In addition, for employees in management positions, a right of access may be granted to information about disciplinary sanctions such as warning, dismissal or summary dismissal within a period of up to two years from the date of the final decision.

If the university receives a request for access to information on individual employees’ employment conditions, the university will notify the employee of the request and the name of the person making the request. When the university has made a decision on the request for access, the relevant employee(s) will be informed of which data have been disclosed.

Duty to record

According to section 13(1) of the Danish Access to Public Administration Files Act (Offentlighedsloven), if you receive information that may be used as the basis for making an HR administration decision, you must record the content of the information.

It would be relevant, for example, for a manager to record the factual information in an oral complaint about an employee or other information that is important to a decision on a disciplinary sanction.

The factual information should be recorded as soon as possible after the information has been received.

Disqualification

The rules on disqualification help to protect the individual employee.

Disqualification means that an employee should not participate in consideration of a case.

In order to ensure correct and legal decisions and to avoid suspicion that inappropriate considerations may be involved in cases, the Danish Public Administration Act states that, in a number of circumstances, a public employee is not allowed to participate in case processing. Generally, public employees are not allowed to take part in considering a case if they, or a closely related person, have a particular personal or financial interest in the outcome of a case. Recipients of grants from foundations are subject to the same rules.

"A closely related person" means parents, children, spouse, in-laws and nephews and nieces. Long-term cohabiting relationships are equated with marriage. In addition, stepchildren, close friends/enemies and possibly other family members who are frequently in the company of the employee are also included.

Duty of notification

An employee who is disqualified, or who is in doubt as to whether they are disqualified, from processing a specific case is obligated to inform his or her manager as soon as possible. The immediate supervisor will determine whether there are disqualification issues.


Examples of situations where disqualification may arise:


Participation in recruitment processes

If a manager or employee has a close personal relationship with a candidate for a position, he or she will not be allowed to participate in consideration of possible employment.

Participation in assessment committees

If a manager or employee has a close personal relationship with a candidate for a position, he or she will not be allowed to participate in the academic assessment. The same applies for co-authors of articles prepared by a candidate who is to be assessed.

PhD students

An employee cannot be PhD supervisor for a PhD student who is a close personal relation to the employee.

Manager/staff relationship

Managers who have established a relationship or a close personal relationship with an employee should inform their immediate supervisor as soon as possible. A personal close relationship between a manager and one of his/her staff may affect work, not only in relation to the employee in question, but also in relation to other staff at the department.

Colleagues

Colleagues who initiate a relationship or a close personal relationship are not obligated to inform their manager. However, if circumstances raise doubts about disqualification, the immediate supervisor should be informed. The same applies if issues arise between the parties or in relation to other colleagues that may affect work at the department.


Consequences of disqualification


If a public employee is disqualified in respect of a specific case, the employee may not make decisions in the case, take part in such decisions, or otherwise be involved in processing the case. The practical consequence of disqualification will typically be that the case is transferred to a colleague or manager.

There may be very special situations in which the case is not transferred, even though disqualification has been established. This will apply if it would be impossible or entail significant difficulties to let another person act in the relevant person's place during processing of the case.

Examples:

  • It is not possible to postpone processing the case.
  • Due to the nature of the case, or the functions of the person in question in connection with processing the case, it is assessed that there is no risk that the case could be affected inappropriately.
  • It would be impossible, or there could be significant difficulties or concerns for case processing, to allow another person to step in.

Grounds

If the university in its capacity as employer makes a decision within the meaning of the Danish Public Administration Act (Forvaltningsloven) which is not in every particular in favour of the party concerned, the grounds for such decision must be given according to the Act.

In other words, decisions that will generally be perceived as having serious and unpleasant implications must be justified.

According to section 23(2) of the Danish Public Administration Act, if the employee is notified of a decision orally, he or she may subsequently demand that written grounds for the decision be given.

Under public administration law, grounds do not have to be given for management measures taken under managerial authority, but this is usually done in practice.

For example, if an employee is dismissed or summarily dismissed, the university is obliged to give grounds for the decision according to section 22(1) of the Danish Public Administration Act.

The grounds for the decision must refer to the rules and regulations on which the decision is based. If the decision rests on administrative discretion, the grounds must also state the main considerations taken into account when such discretion was exercised. If required, the grounds must also include a brief account of the facts of the case deemed to be of paramount importance in making the decision, see section 24 of the Danish Public Administration Act.

Duty of confidentiality

During your employment at the university, you may be given confidential information which you are not allowed to mention or disclose in any way under the provisions of the Danish Penal Code (Straffeloven) on confidentiality. This also applies after your employment at the university ends. In addition to the provisions of the Danish Penal Code on criminal liability, any issues concerning processing and disclosure of personal information are regulated by the Danish Act on Processing of Personal Data (Persondataloven).

Information is confidential when it is necessary to keep it secret to safeguard the university’s interests or not to disclose information about the personal affairs of individuals.

Administrative law principles related to employment

In cases involving staff administrative decisions, the university is subject to a “double legal basis”. This means that, in addition to complying with the usual rules of employment generally in force on the labour market, the university must also comply with public administrative law principles.

The Danish Public Administration Act contains a number of administrative law principles and rules that generally apply to case processing in the public administration, and consequently also to the area of employment law.

In addition to the Danish Public Administration Act, the Danish Act on Processing of Personal Data and the Access to Public Administration Files Act also contain relevant administrative law principles.

Among other things, the Danish Act on Processing of Personal Data regulates when individually identifiable data may be processed and disclosed.

Among other things, the Danish Access to Public Administration Files Act contains provisions on what personal data the public has access to.    

Companion

A person is allowed to be represented by others during the processing of a case, including a personnel case. However, it is not possible to send a representative instead of attending a meeting in person, if personal participation is of importance to the decision of the case (see section 8 of the Danish Public Administration Act).

It is up to the employee to decide who he or she wants to appoint as a companion in a personnel case.

If another person represents the employee in writing, the university will ensure that the representative has the necessary power of attorney to represent the employee who is a party to the case.