Compensation for violation of the 48 hour rule in the Danish Act on Working Hours

Date 28 feb. 2012
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On 21 November 2011, the Eastern High Court ruled in a case regarding violation of Section 4 in the Danish Act on Working Hours. For a period of 4 months, the employee had had a weekly average of working hours which exceeded 48 hours, and the Eastern High Court therefore awarded the employee compensation of DKK 20,000.


The Case in Brief

The Employee worked in a business which dealt with agriculture and agricultural contracting. Among other tasks, the Employee was responsible for the business’ transport of straw and in July 2008, he also undertook the transport on Sundays which until then had been managed by the employer himself.


The Employee scheduled his own work and during the summer of 2008, he transferred other transport tasks to the weekends in that he considered the weekends to be less trafficked.


During the course of the case, the parties agreed that the Employee himself had decided to schedule the tasks in the weekends, and that the employer had not opposed this regardless of the fact that as a consequence hereof, Employee worked outside his regular working hours.


Further, the parties agreed that in the period between 28 July 2008 and 20 November 2008, a period of 4 months and 3 days, the Employee had worked an average of 59.38 hours on a weekly basis and was paid on an by the hour in accordance herewith.


Legal Basis

The Danish Act on Working Hours is an implementation of the European Union Working Time directive (2003/88/EC). The Danish Act on Working Hours applies for wage earners who, pursuant to a collective agreement or special legislation, are not, as a minimum, secured the rights as prescribed by Section 1 (1) and (4) of the act.


Pursuant to Section 4 of the act, the average working hours within a seven day period, calculated over a period of 4 months, must not exceed 48 hours, including overtime. Periods with specially paid vacation or periods with sick leave are not included in the calculation.


If Section 4 of the act is violated, the wage earner can be awarded compensation cf. Section 8 (1) of the act.


The High Court’s Ruling

The High Court took the view that the employer was aware of the extent of the Employee’s average working hours, partly because the Employee was paid for his full working hours. As a consequence, the High Court found that the employer had understood and accepted that the Employee performed the tasks assigned by the employer in the weekends, notwithstanding that this had resulted in an average of 59.38 weekly hours for the Employee during the period in question in 2008.


Given that the Employee’s weekly average working hours was 59.38 hours, and that the employer had understood and accepted this, the High Court found that Section 4 of the Danish Act on Working Hours had been violated.


The High Court fixed the compensation at DKK 20,000 based on the fact that the Employee had had an interest in performing all of the tasks that he had performed, notwithstanding that this resulted in considerable overtime, and because the Employee was not ordered to perform any of the tasks against his own will.


Consequences of the Ruling

The ruling is the third High Court ruling within a few years which deals with the Danish Act on Working Hours’ rules regarding the maximum average of 48 weekly working hours. This ruling is in accordance with the ruling of the Western High Court from 2010 in which the High Court also found that the employee was eligible to receive compensation despite the fact that the employee had had an interest in working to the extent which was the case.


On the basis of this practice, the employer has a duty to ensure that the 48 hour rule in Section 4 of the Danish Act on Working Hours is not violated. In practice, this means that the employer is obligated to ensure that no employee exceeds the 48 weekly working hours. Any failure to comply with this obligation will result in the employee becoming eligible to receive compensation.


Further, it may be concluded from this ruling that if an employee has performed the tasks on his own accord, this may influence the size of the compensation but not the liability in general. 



If you have any questions or require additional information on the judgment or employment law in general, please contact attorney Pernille Nørkær (pno@mwblaw.dk) or Junior Associate Sofie-Amalie Gregaard Brandi (sab@mwblaw.dk).


The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions or considerations.