Denmark: Employers must pay attention to the working time rules – following a new judgment from the Danish Supreme Court regarding the so-called 48 hours' rule

On 14 November 2017, the Danish Supreme Court has passed a judgment in a case concerning the working time rule, which is also known as "the 48 hours' rule", awarding an employee DKK 50,000 in compensation for the employer's violation of the rule.

Case summary

According to EU's Working Time Directive implemented in Denmark by the Working Environment Act, an employee is not allowed to work more than 48 hours per week on average during a 4 months' reference period. The compensation is not for a pecuniary loss, but a compensation for the particular workload that the exceeding of the 48 hours' limit entails.

The employee A was employed as a tractor driver at X Constructions and Machinery Contractor from 1 July 2008, and the employment ended in the beginning of 2014. A was an hourly employee and received overtime payment.

After the employment ended, A made a claim for compensation for the extensive overtime work during several reference periods.

The parties agreed that he, during the years 2010-2013, had worked more than 48 hours per week on average in 32 reference periods (i.e. 4 months' periods).

The question of the case was if A was entitled to compensation, and if so how much.

The Supreme Court judgment

The Supreme Court states that as a mail rule a compensation for exceeding the 48 hours limit shall be DKK 25,000 unless exceptional circumstances speak in favour of higher or lower compensation.

Aggravating circumstances in favour of awarding a compensation for more than DKK 25,000 and up to DKK 50,000 could be that the exceeding of the 48 hours' limit is very substantial and has been ongoing for several or long periods. The Supreme Court also states in the judgment that in very exceptional cases, e.g. if several aggravating circumstances exist, a compensation for more than DKK 50,000 may be awarded.  

A repeatedly and during a period of several years worked more than the 48 hours limit, and during several of the reference periods, he worked far more than the limit allowed. However, he performed the work voluntarily and received full payment accordingly.

But considering the extensive and repeated violations of the 48 hours' limit, the Supreme Court awarded A the compensation of DKK 50,000 after all; consequently, the circumstances of the case were considered aggravating.

The City Court had awarded a compensation of DKK 15,000 while the High Court also had awarded DKK 50,000 in compensation.

Bird & Bird's comments

With this judgment, the Supreme Court for the first time makes a statement regarding the size of the compensation for violation of the 48 hours' rule and specifies that as a main rule the compensation is DKK 25,000 with a maximum of DKK 50,000.

An employer must always closely watch that an employee does not exceed the 48 hours rule and to the extent possible ensure that an employee takes time off to counterbalance overtime if there is a risk of repeatedly exceeding the limit.

In this connection, it is important to notice that – according to this judgment – it does not seem to be essential that the employee has received overtime payment or has not objected to the extra work in any way. 

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