New ruling on working hours and the interpretation of self-managed employees

The case in brief

During an extended period, a senior consultant, employed by the state, had worked an average of more than 48 hours per week. The central question in the case was whether this violated the EU Working Time Directive and the Danish Act implementing parts of the directive.

The employer argued that the consultant was a “self-managed employee” and was therefore not subject to the 48-hour rule. However, the arbitrator rejected this claim, stating that the exemption for self-managed employees must be interpreted narrowly in accordance with EU regulation. To qualify as a self-managed employee, the individual must have complete freedom to determine both the timing and extent of their working hours.

In this case, the assessment stated that the senior consultant did not have such freedom. The consultant’s ability to organize work was restricted as the employer had scheduled a series of recurring weekly meetings. The consultant did not have sufficient influence over the length of working hours or the organization of work to be considered self-managed. As a result, the employer could not exempt the employee from the 48-hour rule.

Narrow interpretation of self-managed employees

To be exempt from the EU working time protection rules, an employee must have full control over their working hours. Flexibility in scheduling is not sufficient. The ruling clarifies that the scope of self-managed employees is very limited and cannot automatically apply to an entire category of workers, such as academics and consultants.

12-months reference period

Although the consultant had worked more than 48 hours per week for several months, the arbitrator determined that the applicable collective agreement allowed for a 12-months reference period instead of the four-months period stated in the Working Time Directive. Consequently, the consultant’s average working hours had to be assessed over a 12-months period. This meant that periods in which working hours were below 48 hours per week could lower the overall average time, ensuring that the rule was not formally violated.

The employer succeeded in arguing that the reference period in the collective bargaining agreement was lawfully set at 12 months, leading to acquittal in the case. The ruling thus demonstrates how collective agreements can impact the assessment of working hours and underscores the importance of clear collective bargaining agreement provisions in this area.

Time registration and employer responsibility

The case coincides with the implementation of mandatory time registration, which took effect on 1 July 2024. All employers must now be able to present working hours to ensure compliance with the 48-hour rule as well as daily and weekly rest periods.

LES’ comments

The ruling marks an important clarification in Danish employment law. It emphasizes that an employer cannot circumvent working time regulation simply by classifying an employee as self-managed. A concrete assessment is required, and in practice, it will be difficult to argue that academics or consultants generally fall outside the rules. Employers should therefore not assume that an entire group of employees can be considered self-managed based on their job title or their right to flexible working hours.

Want to know more?

Contact one of our employment law specialists; Partner Michael Møller Nielsen, Associate Partner Julie Flindt Rasmussen, or Attorney Lene Lindved Fruensgaard to learn more about how to ensure compliance with working time regulations.