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HR Legal

Compensation for exceeding the 48-hours rule

15 January 2018

The Supreme Court has recently established that a violation of the 48-hour rule triggers a compensation to the employee of DKK 25,000 unless there are special arguments for raising or lowering the amount.

A man was employed as a tractor driver with a weekly working time of 42.5 hours. However, in the following years, the tractor driver worked more than 48 hours a week on average and therefore received overtime pay for work beyond the 42.5 hours in accordance with the employment contract.

The employment was terminated after several years due to disagreement. Subsequently, the tractor driver raised a claim for breach of the 48-hours rule.

According to the 48-hour rule, the weekly working hours must not exceed 48 on average, including overtime, calculated over a period of four months.

The Supreme Court: DKK 25,000 as a starting point

The Supreme Court found first and foremost that compensation for the violation of the 48-hour rule as a starting point should be set at DKK 25,000, unless there are special circumstances giving cause for raising or lowering this amount.

Mitigating circumstances may point towards lowering this amount or not to pay any compensation at all. As an example of such mitigating circumstances, the Supreme Court mentioned, among other things, where the violation of the 48-hour rule is trivial or where the violation is an onetime event, accidental or apologetic, and the employer immediately takes action to avoid repetitions.

On the other hand, aggravating circumstances may point towards a compensation of DKK 25,000-50,000. According to the Supreme Court, such circumstances could be that the 48-hours rule has been exceeded significantly, that the employer has ordered the employee to work more than permitted, that the employer has threatened the employee with dismissal unless he works overtime, or that the employee has not received payment for the overtime.

In case of several aggravating circumstances, the compensation may in exceptional cases be imposed by an amount above DKK 50,000.

In this specific case, the Supreme Court noted that the tractor driver had been working overtime at his own request and had received full payment in this regards. The Supreme Court, however, attached major importance to the significant breach of the 48-hours rule, and the fact that it had happened numerous times over several years. The Supreme Court therefore found that the employee's compensation should be set at DKK 50,000.

IUNO’s opinion

Neither the 48-hours rule nor the preparatory works stipulate any guidelines on how to determine the compensation. With this verdict, the Supreme Court now sets out clear guidelines the determination of the compensation for violating the 48-hours rule. Thus, as a starting point, compensation for violating the 48-hours rule is DKK 25,000. Mitigating or aggravating circumstances may, however, cause the amount to be reduced or increased. Furthermore, the verdict shows that if the overtime is not being remunerated additional claim can be made in this regard.

Lastly, the verdict states that compensation will be rewarded notwithstanding the employee’s own request of overtime work and whether the employee has been remunerated or not. It is therefore important for companies to ensure that their employees do not work more than 48 hours per week on average over a period of four months.

[Judgment by the Danish Supreme Court given on 14 November 2017, case 299/2016]

A man was employed as a tractor driver with a weekly working time of 42.5 hours. However, in the following years, the tractor driver worked more than 48 hours a week on average and therefore received overtime pay for work beyond the 42.5 hours in accordance with the employment contract.

The employment was terminated after several years due to disagreement. Subsequently, the tractor driver raised a claim for breach of the 48-hours rule.

According to the 48-hour rule, the weekly working hours must not exceed 48 on average, including overtime, calculated over a period of four months.

The Supreme Court: DKK 25,000 as a starting point

The Supreme Court found first and foremost that compensation for the violation of the 48-hour rule as a starting point should be set at DKK 25,000, unless there are special circumstances giving cause for raising or lowering this amount.

Mitigating circumstances may point towards lowering this amount or not to pay any compensation at all. As an example of such mitigating circumstances, the Supreme Court mentioned, among other things, where the violation of the 48-hour rule is trivial or where the violation is an onetime event, accidental or apologetic, and the employer immediately takes action to avoid repetitions.

On the other hand, aggravating circumstances may point towards a compensation of DKK 25,000-50,000. According to the Supreme Court, such circumstances could be that the 48-hours rule has been exceeded significantly, that the employer has ordered the employee to work more than permitted, that the employer has threatened the employee with dismissal unless he works overtime, or that the employee has not received payment for the overtime.

In case of several aggravating circumstances, the compensation may in exceptional cases be imposed by an amount above DKK 50,000.

In this specific case, the Supreme Court noted that the tractor driver had been working overtime at his own request and had received full payment in this regards. The Supreme Court, however, attached major importance to the significant breach of the 48-hours rule, and the fact that it had happened numerous times over several years. The Supreme Court therefore found that the employee's compensation should be set at DKK 50,000.

IUNO’s opinion

Neither the 48-hours rule nor the preparatory works stipulate any guidelines on how to determine the compensation. With this verdict, the Supreme Court now sets out clear guidelines the determination of the compensation for violating the 48-hours rule. Thus, as a starting point, compensation for violating the 48-hours rule is DKK 25,000. Mitigating or aggravating circumstances may, however, cause the amount to be reduced or increased. Furthermore, the verdict shows that if the overtime is not being remunerated additional claim can be made in this regard.

Lastly, the verdict states that compensation will be rewarded notwithstanding the employee’s own request of overtime work and whether the employee has been remunerated or not. It is therefore important for companies to ensure that their employees do not work more than 48 hours per week on average over a period of four months.

[Judgment by the Danish Supreme Court given on 14 November 2017, case 299/2016]

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Anders

Etgen Reitz

Partner

Søren

Hessellund Klausen

Partner

Kathrine

Skøtt Jespersen

Senior associate

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