Duty to ensure observance of mandatory maximum working hours
The ruling of the Eastern High Court is the third high court ruling within recent years concerning an employee's entitlement to compensation under the Working Time Act when the employee has worked more hours in average over a period of four months exceeding the mandatory limit of 48 hours including overtime work. The latest case is in line with the Western High Court ruling from 2010 as it is clear in both cases that the employee had an interest in working that many hours. In the latest case, the employee had been paid for all hours, but the Eastern High Court still found that the employee was entitled to compensation.
The employer is obligated to ensure that the mandatory 48-hour rule is complied with. If not, the employee will be entitled to compensation. It may be concluded that if the employee has voluntarily taken on the assignments, this may influence the size of compensation, but not the liability.
Compensation under the Working Time Act
The Act is an implementation of the EU Working Time Directive. The Act provides that, as a maximum, an employee may work 48 hours per week in average over a period of four months. If the employer does not comply with the Act, the employee is entitled to compensation.
The parties to the above case agreed that the employee had worked for 59.38 hours per week in average over a period of four months. The High Court found (not surprisingly) that this was a violation of the Working Time Act.
The High Court took into account that the employer was responsible for the assigning of the tasks. The employer agreed that the employee had performed the tasks assigned even though the employer knew that the average weekly working hours would amount to 59.38 during a period.
The High Court found that the employee was entitled to compensation according to the Act. However, as the employee had been interested in performing all the tasks, and as he voluntarily took on all the tasks, the High Court found that compensation was to be fixed at DKK 20,000 equivalent to one months' salary for a week with 48 hours of work.
On 23 June 2010, the Western High Court awarded compensation of DKK 80,000 equivalent to two months' salary to an employee who had also voluntarily taken on the tasks assigned by the employer. The employee's interest in taking on the tasks was that he could go from managing an inn to becoming the leaseholder. As the possibility of becoming a leaseholder turned out to be non-existing, the employee terminated his employment and claimed compensation according to the Act.
When fixing compensation, the High Court probably attached importance to the fact that the working hours had not significantly exceeded 48 hours in average even though the exact working hours remained undocumented.
On 5 February 2008, the Eastern High Court found that compensation for violation of the 48 hour rule of the Act over a period of four months was to be fixed at DKK 36,000 equivalent to one month's salary. The maximum working hours had been exceeded by 2 hours and 20 minutes per week. The High Court did not state whether the working hours had been accepted by the employee as in the two most recent rulings.
Violation of the Contract of Employment Act
The latest ruling of the Eastern High Court also concerns violation of the Contract of Employment Act as the employee was not provided with a contract of employment in connection with the employment, which is a requirement according to the Contract of Employment Act. The parties disagreed on compensation.
The parties discussed whether the employee had been informed about the fact that the employer was not a member of an employers' organisation and not covered by a collective agreement. The High Court found that a contract of employment was not to contain information on circumstances not applicable to the employment, and the High Court referred, inter alia, to U20098.2871Ø. In addition, there were no circumstances justifying that it had had specific importance that the employee had not received a contract of employment. The High Court then found that the employee was entitled to compensation of DKK 2,500.
The content of this Newsletter is not, and should not replace, legal advice.