For the first time, the Supreme Court has ruled on a violation of the principle of equality of the Temp Act.

The principle of equal treatment implies that temps may invoke the same terms and rights applying to other employees in same positions with the user company.

Temp received a lower pay than the permanent staff

A laboratory technician with a temp agency started as a temp with a food company.  She was paid DKK 150 per hour, but, in contrast to what applied to the company's permanent staff, she did not receive pension contributions, allowance as a laboratory technician or holiday allowance.

When the temp job ended, she brought action against the temp agency claiming additional payment of salary and compensation for violation of the  principle of equal treatment of the Temp Act

The question was whether all parts of the salary could be considered included in the hourly pay of DKK 150, or whether the temp had been placed in an inferior position compared to the permanent staff.

The Maritime and Commercial High Court: Compensation under the Contract of Employment Act

The Maritime and Commercial High Court found that the temp had been paid less than the permanent staff, and the Court ruled partly in favour of the claim for repayment.

However, the Court did not agree that the violation could be compared to a violation of the Equal Treatment Act and the Anti-Discrimination Act. The Court assessed that the violation and its consequences could be compared to a violation of the Contract of Employment Act. Compensation was therefore fixed at DKK 10,000 for violation of the Temp Act.

Compensation for violation of the principle of equal treatment

The Supreme Court affirmed that the temp was not employed on terms that at least equalled the terms of the permanent staff, and the Supreme Court therefore found in favour of the temp in relation to re-adjustment of holiday, pension and personal bonus.

According to the Supreme Court, the temp had been placed in an inferior position compared to the permanent staff and was therefore entitled to compensation for violation of the principle of equal treatment.

The Supreme Court referred to the underlying EU directive stating that "the sanction must be effective and reasonably proportional to the violation and have a deterrent effect."  Further, the Supreme Court attached importance to the fact that the temp was to be considered compensated in full for the loss suffered in connection with the violation of the Temp Act.

Based on the above and an overall assessment, compensation was fixed at DKK 15,000.

Comments

As opposed to the Maritime and Commercial High Court, the Supreme Court does not directly refer to the Contract of Employment Act when fixing compensation.  

However, the level of compensation is still closer to what we see in connection with violation of the Contract of Employment Act than violation of the principle of equal treatment under other protective legislation, for instance the Equal Treatment Act and the Anti-Discrimination Act.

The Supreme Court proposes to fix compensation based on a specific assessment of the actual circumstances. In this connection, it is noted that the temp agency's violation of the principle of equal treatment in this action did not result in dismissal of the temp, and it is typical in a situation where the temp is dismissed that we see major compensation payments. Consequently, it cannot be ruled out that the level will be significantly higher in actions with different circumstances and if the temp for instance invokes the principal of equal treatment. But this still remains to be clarified.

contacts

Marianne Lage

Partner

Maria Schmiegelow

Attorney