Landmark ruling from the Supreme Court clarifies compensation for flex job workers.

The specific case

The case concerned whether compensation for an employee in a flex job under the "new" scheme, where the employee was hired after January 1, 2013, should be calculated based on the salary paid by the company during the employment period or the salary plus the flex wage subsidy received by the employee from the municipality.

In recent years, case law in this area has been unclear, necessitating a clear establishment of the principles for calculating compensation under the Anti-Discrimination Act.

The Supreme Court upheld the ruling of the High Court that the compensation should be calculated based on the salary paid by the employer without including the flex wage subsidy from the municipality.

What about flex job workers under the previous scheme?

The Supreme Court also addressed whether the difference in the calculation of compensation for flex job employees hired before January 1, 2013, compared to those hired after January 1, 2023, constituted unlawful discrimination if the compensation was to be calculated solely based on salary.

The Supreme Court concluded that the difference in compensation based solely on the start date of the employment did not constitute unlawful discrimination.

In determining that there was no illegal discrimination, the Supreme Court emphasized the intention to make it more attractive for employers to hire employees with limited work capacity, as the employee is only paid based on the actual work performed.

The Court also found that the difference in compensation calculation is objectively justified by a legitimate purpose and that the means to achieve this are appropriate and necessary.

LES’s comment

The Supreme Court's ruling clarifies years of unclear case law in this area, which has led to many lawsuits where the issue of the amount of compensation has been addressed.

The ruling now allows employers to better understand how potential compensation under the Anti-Discrimination Act should be calculated if they find themselves in a dispute over the dismissal of a flex job employee under the new scheme.

If you want to learn more about the implications of the ruling or how you as an employer should approach the rules in this area, please contact one of our employment law specialists: partner Michael Møller Nielsen, associate partner Julie Flindt Rasmussen, attorney Anna Lindencrone Lundin, or assistant attorney Mina Faiz from our employment law team.