The Supreme Court: Less favorable terms for employees in temporary positions were not a violation of the Danish act on temporary employment work

The circumstances of the case:

In this specific case [1], the Danish Agency for Data Supply and Efficiency has employed 4 surveyor assistants in temporary positions. In cooperation with skilled land survey technicians, the surveyor assistants were to perform surveying of a high degree of accuracy and precision of e.g. the elevation differences in Denmark.

The salary and employment terms for the surveyor assistants were fixed in accordance with the collective bargaining agreement between the Danish Ministry of Finance and the Organisations of Public Employees – Denmark and the organizational agreement for cleaning staff, semi-skilled workers and certain vocational trained staff etc. This e.g. entailed that the surveyor assistants had to receive the same salary as hourly paid employees and that the surveyor assistants were further employed on employment terms which were less favorable compared to the employment terms on the land survey technicians.

In this case, the Supreme Court was to consider whether the surveyor assistants' employment contracts were violating the Danish act on temporary employment work when comparing the less favorable employment terms to the employment terms of the land survey technicians, and if so whether the surveyor assistants were entitled to receive compensation.

Applicable legislation:

Pursuant to section 4(1) of the Danish act on temporary employment work, the employment terms for a temporary employee must not be less favorable than the terms applying for a comparable permanent employee, if the differential treatment is only based on the time-limited duration of the employment and not based on objective circumstances.

Pursuant to section 3(4) of the Danish act on temporary employment work, the assessment of the employment terms must be compared to a permanent employee in the same business who is employed in a permanent position and who performs the same or corresponding work assignments as regards both qualifications and skills.

The comments of the Supreme Court:

The Supreme Court stated in this connection that it is essential whether the surveyor assistants performed the same or corresponding work assignments as the permanents employees in the Agency.

The Supreme Court stated that the fact the surveyor assistants were covered by the same collective bargaining agreement as the land survey technicians (and other permanent employees in the business) does not mean that the surveyor assistants per definition perform the same or corresponding work assignments.

The Supreme Court further remarked that surveyor assistants' Union (3F) had not initially pleaded that the surveyor assistants performed the same work assignments as the land survey technicians but only pleaded, however, that they performed specialized work which could be compared to the work assignments of the semi-skilled workers in the Agency.

Since the Agency's semi-skilled workers' work assignments included distribution of mail, clearing snow etc., and since the surveyor assistants did not have these work assignments, the surveyor assistants did not perform the same or corresponding work assignment as the semi-skilled workers.

3F secondarily pleaded that the surveyor assistants performed the same or corresponding work as the permanent land survey technicians. The Supreme Court disagreed and the court stated that the land survey technicians had a certain level of education and skills which the surveyor assistants did not possess.

Of these reasons, the surveyor assistants employed in time-limited positions were not entitled to the same employment terms as employees in a permanent position. The Supreme Court therefore found that there had been no differential treatment and the surveyor assistants were therefore not entitled to compensation.

Bird & Bird's comments:

The Supreme Court's decision primarily ascertains that it is not possible to presuppose that employees who are covered by the same collective agreement are performing the same or corresponding work.

In each case, an individual assessment must be made of the employee's qualifications, educational level and the character of the employment. Notwithstanding that the employees perform some of the same work assignments and further work closely together with other employees, as in this specific case, there may be differences in the level of education and skills which substantiates the different employment terms.

When an employer employs both permanent and temporary employees and the employment terms for these groups are different, it is thus important that the employer considers whether the difference is substantiated by the employees' qualifications, educational level or the character of the position.

[1] Judgement of 17 December 2019. Case no.: BS-39382/2018-HJR, http://domstol.fe1.tangora.com/Domsoversigt-(H%C3%B8jesteretten).31478.aspx?recordid31478=1849