The Western High Court has ruled that a disabled citizen was to be considered the formal employer of his assistant under the BPA scheme (user-controlled personal assistance). The assistant could therefore not raise his claims against the Municipality of Kolding.

Background

Since 2007, the assistant had been working for a disabled citizen. The assistant was employed under the so-called BPA scheme, meaning that the municipality paid his salary, whereas the formal employer was the disabled citizen.

As the assistant believed that he was entitled to salary according to the collective agreement between FOA and KL, FOA brought legal action on behalf of the assistant against the Municipality of Kolding and the disabled citizen claiming additional payment of salary, holiday allowance and pension contributions. The assistant also claimed compensation under the Equal Treatment Act and compensation for insufficient contract of employment.

The municipality claimed that it was not the assistant's employer, and that the claim was therefore to be raised against the disabled citizen being the formal employer. The disabled citizen claimed, however, that the municipality was to be considered the formal employer. 

Western High Court ruling

The Western High court found that even though the municipality paid all expenses in connection with the employment and also financially administered the BPA scheme, including payment of salary, deduction of tax from income at source, etc., the legal basis of the scheme stipulates that the disabled citizen is considered the employer of the assistant.

The claims were therefore - in general - to be raised against the disabled citizen and not the municipality.

The High Court thereafter found that the assistant was not entitled to additional payment of salary, holiday allowance and pension contribution. The obligation to pay salary to disabled citizens' assistants under the principles of the collective agreement between FOA and KL only applied to the relationship between the municipality and the disabled citizen. 

The High Court found for the disabled citizen in relation to the claim for compensation under the Equal Treatment Act even though it appeared from the contract of employment that no contribution was to be granted during the father's paternity leave. As the condition had not been implemented, the Equal Treatment Act had not been violated. 

In return, the assistant succeeded with his claim for compensation for an insufficient contract of employment as the contract of employment did not contain any information on salary, allowances, etc. The High Court fixed compensation at DKK 5,000, but found that the municipality having prepared the insufficient contract of employment was liable in damages vis-á-vis the citizen, and the municipality therefore had to pay compensation plus interest. 

Comments

The High Court ruling is of general public importance. The result is believed to be a major, although not surprising, victory for the municipalities as they are not directly responsible for observing the employment and labour law rules regulating the employment conditions of persons employed under the BPA scheme. In addition to the municipalities not being liable for any breach of  employment legislation, it must be assumed that assistants under the BPA scheme cannot rely on the special procedural requirements applying in relation to employment and dismissal within the public sector, including the requirement for examination of the parties involved and justification.

But the municipalities cannot be certain that they will be exempt from liability when it comes to persons under the BPA scheme. Due to the special nature of the employment, according to which the municipality administers a large part of the tasks normally resting on the employer, the municipality may easily incur liability for any errors under the general rules, which was the case here.

It is noted that the period allowed for appeal has not expired. 

contacts

Marianne Lage

Partner