Recently, the Supreme Court delivered its first judgment in a case concerning the level of compensation for violation of the so-called 40-hour rules of the Working Time Act.

It appears from section 4 of the Working Time Act that the average weekly working hours may not exceed 48 hours including overtime work within a period of four months. The calculation of the working hours must be based on the work performed, including any overtime work within a period of four months.

EMPLOYED TO WORK 42.5 HOURS EACH WEEK

In July 2008, an employee was employed as a tractor driver at a tractor station with weekly working hours of 42.5 hours. The work as a tractor driver is very seasonal, and a lot of hours are required in the spring and in connection with the harvest. The employee more or less arranged his own working hours as long as the work was done within the fixed time limit.

A calculation of the employee’s working hours showed that, in the period 2010-2013, his average working hours exceeded 50 hours per week, and in the periods when he was working the most, his weekly working hours could exceed 60 hours.

The employee never turned down or refused overtime work as he had had difficulties objecting to overtime work.

The employer stated that the employee had always been willing to take on extra work if asked. The employer also stated that even if the employee often worked many hours, he had once asked the employer whether he was entitled to take on other work during the off-season.

THE DISTRICT COURT AND THE HIGH COURT AWARD COMPENSATION TO THE EMPLOYEE

The employee was awarded compensation for the employer’s violation of the 48-hour rule. The district court found that the employee was entitled to compensation of DKK 15,000, while the high court awarded compensation of DKK 50,000 attaching importance to the scope and character of the violations.

THE SUPREME COURT LAYS DOWN GENERAL GUIDELINES CONCERNING COMPENSATION

Before the Supreme Court, there was no doubt that the employee was entitled to compensation. Consequently, the question remaining was only how much compensation the employee was to be awarded under the Working Time Act.

First of all, the Supreme Court noted that compensation under the Working Time Act is not compensation for a financial loss, but solely compensation for a special work load due to a violation of the 48-hour rule.

The Supreme Court then made general comments on how to fix the compensation level.

COMPENSATION LEVEL FIXED AT DKK 25,000  - SUBJECT TO MITIGATING AND AGGRAVATING CIRCUMSTANCES

According to the Supreme Court, compensation for violation of the 48-hour rule should generally be fixed at DKK 25,000, unless the specific case involves special reasons to reduce or increase compensation.

Mitigating circumstances, which may result in compensation lower than DKK 25,000, may for instance be if the violation of the 48-hour rule is unimportant, or the violation is a single, occasional or excusable event and the employer immediately took measures to avoid repetition.

Aggravating circumstances, which may result in compensation from 25,000 to 50,000, may for instance be if the violation of the 48 hour rule has had a very wide scope or took place in several or long periods. Aggravating circumstances may also be if the employee has been ordered to work for more than 48 hours a week, or if the employer has threatened to dismiss the employee. It is also an aggravating circumstance if the employee has not been paid for the work performed.

In quite special situations, for instance if there are more aggravating circumstances, compensation may exceed DKK 50,000.

In connection with the specific case, the Supreme Court ruled - in line with the high court - that the employee was to be awarded compensation of DKK 50,000.

The reason for the aggravation was that, during the four-year period, the employee had worked for more than 48 hours each week, and in several periods, he had worked significantly more than the limit of 48 hour a week. However, the Supreme Court assessed that the employee had performed the work at his own request, and that he had received full pay for the work.

FIRST TIME THE SUPREME COURT RULES ON COMPENSATION UNDER THE WORKING TIME ACT

The judgment is particularly interesting because it is the first time, the Supreme Court rules on the measuring of compensation for violation of the 48-hour rule of the Working Time Act.

The Supreme Court clearly states how to fix compensation, and it should thus be expected that this judgment will be given decisive weight when assessing future cases on compensation for violation of the 48-hour rule.

It may also be concluded based on the judgment that the fact that the employee wished to take on more work to an extent exceeding 48 hours a week cannot clear the employer of responsibility.  But it may be included as one of several circumstances when fixing compensation that the employee had requested to work more, or that the employee had received payment for all work performed.

contacts

Marianne Lage

Partner

Michelle Seidelin

Assistant Attorney