How much compensation to pay?

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Date:
08 Dec 2016

by permitting an appeal against a high court judgment, the appeals permission board has given the danish supreme court an opportunity to address the principles governing the assessment of compensation for breach of the working time directive.

By:
Yvonne Frederiksen

By permitting an appeal against a High Court judgment, the Appeals Permission Board has given the Danish Supreme Court an opportunity to address the principles governing the assessment of compensation for breach of the Working Time Directive.

The Working Time Directive is implemented into Danish law by the Danish Act on Implementation of ‎Parts of the Working Time Directive. According to the Danish Act, an employee’s average weekly ‎working time must not exceed 48 hours over a period of 4 months.  If an employee works more hours ‎than that, it will constitute a breach of the Act and the employer may be ordered to pay compensation.‎

Case law in the area is sparse, and the question of which principles should govern the assessment of ‎compensation is a subject of some debate. On 17 June 2016, the Danish Western High Court ruled in a ‎case concerning a tractor driver whose average weekly working time over a period of 4 months had ‎repeatedly exceeded the norm.‎

Third time lucky
In the first instance, the District Court in Sønderborg had ordered the employer to pay DKK 15,000 in ‎compensation, having regard to the totality of facts of the case, including the fact that the tractor driver ‎had worked extra hours on his own initiative.‎

Before the High Court, the tractor driver’s trade union claimed a total of DKK 127,598.04 in ‎compensation, equivalent to 4 months’ pay. The High Court ended up awarding DKK 50,000 instead.‎

With the decision of the Appeals Permission Board, the Supreme Court will now have an opportunity to ‎address the principles governing the assessment of compensation for breach of the Danish Act on ‎Implementation of Parts of the Working Time Directive.‎

Norrbom Vinding will follow the appeal and report on any new developments.‎

 

Norrbom Vinding notes

  • that the Supreme Court’s judgment is expected to provide clarity of the state of the law on this point; ‎and
  • that it will be particularly interesting to see with regard to assessment of compensation if the Supreme ‎Court will endorse the very well-reasoned decision of the first instance court, which placed decisive ‎weight on the fact that the employee had worked extra hours on his own initiative and had also ‎received “full overtime payment”.‎