Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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Supreme Court Rules on the Definition of Employees Vis-à-vis Consultants According to Tax Legislation

Precedential Decision by Judiciary or Regulatory Agency

Author: Bo Enevold Uhrenfeldt, Partner – Littler | enevold

On December 8, 2022, the Supreme Court of Denmark ruled in a dispute between a Dutch company and the Danish Ministry of Taxation regarding whether 101 divers were to be classified as employees or self-employed. The dispute concerned the company’s obligation to withhold taxes in the payment the divers received during a period of work in Danish waters. The company argued that the divers should be regarded as self-employed, whereas the Ministry of Taxation argued that the divers should be regarded as employees.

The Danish Supreme Court ruled that, regardless of the wording in the employment contracts in question and industry standard practice, the divers should be regarded as employees, and thus that the employer was liable for not complying with tax legislation applicable to employees. The Supreme Court emphasized in the assessment, among other factors, the instruction and supervision performed by the company as well as the divers’ limited financial risk in relation to the client. With this ruling, the Supreme Court marks that in order to ensure compliance with tax legislation, employers must exercise caution when classifying collaborative partners as self-employed, as the company’s classification is secondary to practical circumstances.

Preliminary ECJ Ruling on Prohibition of Discrimination on Grounds of Age

Precedential Decision by Judiciary or Regulatory Agency

Author: Bo Enevold Uhrenfeldt, Partner – Littler | enevold

In Case C‑587/20, decided on June 2, 2022, the European Court of Justice ruled that an age limit in a trade union’s statutes regarding the possibility of running for the politically elected position of president in the trade union is within the scope of EU Directive 2000/78 on equal treatment in employment and occupation. Thus, an age limit set by the Danish Trade Union, HK, was considered incompliant with the Danish Non-Discrimination Act.

In earlier case law, the Danish Non-Discrimination Act, which transposes EU Directive 2000/78 in Denmark, has been interpreted to solely include employees. Following the preliminary decision of June 2, 2022, the Non-Discrimination Act may however be invoked by people performing any professional activity that constitutes livelihood. Hence, the rules of the Discrimination Act may now be invoked by a significantly wider group of people than before.

Denmark’s Response to EU Directive on Minimum Wages

New Regulation or Official Guidance

Author: Bo Enevold Uhrenfeldt, Partner – Littler | enevold

The EU directive on minimum wages entered into force on November 14, 2022. In Denmark, there is no statutory minimum wage. The directive will maintain this current state of law. Thus, Denmark’s obligation is to increase the coverage of collective bargaining agreements, and hereby set out minimum wages for more employees.

Denmark has put forward political opposition towards the directive, including voting against the directive’s adoption. Furthermore, the acting Danish government, inaugurated December 2022, has included the aim to file an action for annulment of the directive in their governmental framework.

New Regulation on Earmarked Maternity Leave

New Regulation or Official Guidance

Author: Bo Enevold Uhrenfeldt, Partner – Littler | enevold

The bill on earmarked maternity leave entered into force on August 2, 2022. According to the act, each parent is entitled to 24 weeks of maternity/paternity leave upon the birth of the child. Within each of the parents’ 24 weeks of maternity/paternity leave, nine weeks is “earmarked” leave. Thus, each parent may transfer a maximum of 13 weeks of maternity leave to the other parent. In addition to 24 weeks of maternity leave, the mother of the child is entitled to four weeks of pregnancy leave prior to the birth of the child.

The introduction of earmarked maternity leave entailed a shift in the state of Danish law, as the new model introduced a starting point of equality between parents regarding the distribution of leave.

New Draft Law Regarding Denmark’s Transposition of the Directive (2019/1152) on Transparent and Predictable Working Conditions

Proposed Bill or Initiative

Author: Bo Enevold Uhrenfeldt, Partner – Littler | enevold

In August 2022, The Danish Government proposed a bill to replace the current Act on Employment Certificates with the proposed Act on Employment Certificates and Certain Working Conditions. The proposed bill entails a significant extension of the scope of the employer’s obligation to inform employees of their employment conditions compared to the current state of the law, as the act modifies the scope requirement of employees’ daily working time from eight to three hours. Furthermore, the bill introduces minimum standards for employment conditions.

The bill has not yet been adopted by the Danish Parliament. According to announcements given by the government, the Act on Employment Certificates and Certain Working Conditions is expected to enter into force during the summer of 2023.