Public servants seconded to 100 % private company

On 24 September 2012, the Supreme Court affirmed the High Court ruling concerning the tolerance limit of public servants as to changes in their employment due to section 12 (1) of the Regulation on public servants. The Supreme Court found that the changes of the employment of ten public servants in connection with outsourcing of their tasks to a private company did not go beyond the tolerance limit of public servants as their employment would primarily continue as before.

Background

In connection with the municipal reform 2007 involving, inter alia, a partial privatisation of the public bus traffic, the regional bus company, FynBus, outsourced most of its operations of a garage to the private company, Tide Bus A/S. As part of the outsourcing, ten public servants employed at the garage were to be seconded to the private company. The secondment was not to affect their employment as public servants.

The question was then whether then ten public servants could be ordered to accept this secondment within the framework of section 12 (1) of the Regulation on public servants, or whether the secondment was to be compared to an elimination of the public servants' previous positions or a transfer exceeding what they were expected to tolerate.

The public servants claimed that they were entitled to demand to be dismissed and to receive redundancy pay as they did not find that they had to tolerate the changes in the employment, and as they had not been assigned to another appropriate position.

High Court ruling

The High Court found that, under section 12 (1) of the Regulation, public servants are obligated to undertake changes that do not change the character of the previous work, and to undertake changes that do not result in the positions being considered inappropriate after the change. In this case, the public servants' tasks and place of work had primarily not been changed, and they were also mainly engaged with public tasks.

The changes were part of a general restructuring of the public service sector, and despite the fact that the secondment to the private company had not taken place according to the Regulation, the Court found that the secondment did not exceed what the public servants had to tolerate according to the Regulation, and no changes had been made to the character of the position which the public servants were not obligated to tolerate under section12 (1) of the Regulation.

Supreme Court ruling

The Supreme Court affirmed the High Court ruling, and in relation to the assessment of the limit of tolerance of the public servants (under section 12 (1) of the Regulation), the Court attached importance to the following:

In connection with the outsourcing, the public servants continued to be employed as public servants with FynBus maintaining all rights in connection with this employment. FynBus still had to make decisions on disciplinary matters and dismissal of public servants, and FynBus also paid both salary and pension. The Court further found that the public servants were performing the same tasks at the same location and with the same job title, and their salary was unchanged and still regulated in the same way as other public servants.

On the basis of the above, the Court found that the secondment to the 100 % private company did not exceed what the public servants were obligated to tolerate according to the Regulation. Specific importance was attached to the fact that the employment of the public servants was primarily considered unchanged, and that the operation of the garage, where the ten men worked, was still subject to the bus company's control.

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