On 1 January 2007, A was employed as a sales consultant with employer B – a hospital and care home service operator. A was paid a fixed monthly salary as well as commission and bonus. The commission earned was calculated as the turnover generated by the employee each month.
On 3 March 2008, A was reported part-time sick because of pregnancy problems which made her unable to work more than 20 hours a week. This led the employer to believe that she could not carry out the position as a sales consultant, and she was therefore assigned other duties. In that connection, employer B said that A would not be paid commission on any sales made in A's district during her period of absence.
A brought legal action against B and submitted that she was entitled to commission on sales in her district regardless of her absence from work. A further submitted that she had a claim for compensation under the Equal Treatment Act, the Equal Pay Act and the Particulars of Employment Terms Act.
Employer B denied liability. In support of its plea, B submitted that in the absence period, A's commission should be calculated on the basis of the number of contracts that A would have been able to make in the period and not on the basis of the total number of contracts made in A's district in the period. B further denied that differential treatment had taken place as B merely followed usual company practice when not paying commission.
The district court held that no differential treatment had taken place, but that A was entitled to compensation of DKK 30,000 under the Particulars of Employment Terms Act as the written statement of employment terms did not contain information on pay during holiday and maternity leave and that this had been of specific relevance to A.
However, in its decision, the High Court emphasised that, as a general rule, A was entitled to commission on all sales in her district and that B had not adequately proven the opposite. On these grounds, the High Court awarded A DKK 126,000 for the commission that she was not paid during her sickness. The Court further emphasised that after having been told that A was pregnant, B told her that she could no longer work as a sales consultant. As A was not paid the commission to which she was entitled during her absence from work due to sickness, it was a matter of differential treatment. Because A had been employed only a few months before the pregnancy and returned to her job after the end of the maternity leave, the compensation for the differential treatment was fixed at DKK 10,000.
iuno's opinion
The decision shows that also during sickness you have a claim for commission. As the decision illustrates, you must be particularly careful in cases of absence due to sickness related to pregnancy as in such situations differential treatment will also be contrary to the Equal Treatment Act.
[Decision rendered by the Danish High Court (Western Division) on 2 February 2011 in case no. B-1764-10]