On 23 January 2024, the Danish Parliament adopted new rules on working time registration. The rules will enter into force on 1 July 2024, and introduce a new obligation for employers to implement a time recording system making it possible to measure each employee’s daily working time.
Background to the law
The rules are implemented as a direct consequence of the judgment of the European Court of Justice (ECJ) of 14 May 2019 (C-55/18, Deutsche Bank). In this case the ECJ held that Member States must ensure that all employers use an objective, reliable, and accessible time recording system to measure each employee’s daily working hours, even though such an obligation does not follow from the Working Time Directive.
A time registration obligation has never existed in Danish Labour law, and therefore it was necessary to amend the Working Time Directive Implementation Act (Working Time Act) to bring Danish law in line with the practice of the ECJ.
Registration of working hours
The purpose of the amendment to the law is to ensure compliance with the rules on daily and weekly rest periods in accordance with section 50-51 of the Working Environment Act and the maximum weekly working hours pursuant to section 4 of the Working Hours Act.
According to section 50 of the Working Environment Act, all employees have the right to a daily rest period of 11 hours (the 11-hour rule). The 11-hour rule means that an employee has the right to 11 hours of continous rest from the end of one working day to the start of the next working day. It also follows from section 51 of the Working Environment Act that all employees have the right to a minimum of one day off per week. In principle, the weekly day off can be placed on any day of the week, however the weekly day off must held as an extension of an 11-hour rest period, so that the employee has a total rest period of at least 35 hours.
According to section 4 of the Working Hours Act, working hours must not exceed 48 hours, on average per week, calculated on reference period of four months (the 48-hour rule). The weekly working hours may therefore be higher in some weeks, provided this is compensated with shorter working hours in other weeks.
According to the new rules on working time registration, the employer has a free choice of how it organizes the time registration system. It can thus be done both analogue or digitally via, for example, an IT system or an app. However, employers are obligated to ensure that the system is objective, reliable and makes it possible to measure the employee’s daily working time to ensure observance of the applicable rules on daily and weekly rest periods and maximum weekly working time.
According to a written answer by the Ministry of Employment to the Employment Committee (in Danish “Beskæftigelsesudvalget”), it will be sufficient to implement a system in which only the working hours that deviate from the normal daily working hours are recorded.
There is no requirement to register the start and end times of working hours, the only requirement is to register the total daily working hours. The Ministry of Employment confirmed in a written answer to the Employment Committee (in Danish “Beskæftigelsesudvalget”) by way of example, that if an employee works from 9.00 a.m. to 2.00 p.m. and then again from 21.00 to 23.30 later that same day, the only requirement would be to register a total 7.5 hours and not when the actual hours were placed. However, the 11-hour rule would still be applicable, and therefore the employer must ensure that a framework on the placement of working hours is established to ensure compliance with the 11- and 48-hour rules.
Employers must ensure that an employee has access to their own registration information throughout their employment. The rational for this accessibility is to ensure that the employee can raise potential claims for compensation if there has been a breach. In addition, the employer must store the information for five years after the end of the reference period that forms the basis for the calculation of the employee’s average weekly working hours.
Exception for self-organizers
A limited exemption to the time registration requirement applies for certain category of employees (“self-organizers”). The exemption applies not only to the registration obligation but also the rules in the Working Time Act on breaks, the 48-hour rule, and the rules on night work. The exemption applies if the duration of the employee’s working hours cannot be measured and/or determined in advance, or if the employee can determine the working hours themselves because they can make independent decisions, or they have managerial powers. The concept of self-organizer is not further defined in either the law or the legislative guidance.
However, according to the Working Time Directive’s corresponding exemption provision (Article 17) the exemption may apply to employees with managerial responsibilities or other employees who have the authority to make independent decisions, working family members, or employees whose work is linked to the religious actions of churches and religious communities.
The Commission has stated in its interpretation notice that the exemption provision must be interpreted narrowly and cannot apply to an entire category of employees. Therefore, an individual assessment of whether an employee meets the requirements to be a self-organizer will need to be taken when considering the exemption.
If an employer considers that an employee is a self-organizer, a provision confirming this must be included in the employment contract.
Option to deviate from the requirement for a maximum weekly working time (“opt-out”)
Further to the above, the Working Time Act provisions mean that employees may not work more than 48 hours per week calculated as an average over four months.
However, the new rules introduce an option to deviate from the rule on maximum weekly working hours, for employees covered by a collective agreement who perform socially critical work functions on availability shifts (“opt-out”).
Such socially critical functions include e.g. offshore work, on-call monitoring and 24-hour activities, and activities that are characterized by the need to ensure continuous services or continuous production, e.g. when it comes to the press, radio, television, film production, postal service, and telecommunications, ambulance service, fire service, and civil protection.
In the outset the average weekly working hours in an opt agreement must not exceed 60 hours per week calculated over a reference period of four months. However, a longer reference period can be agreed upon in the relevant collective agreement or local agreement if certain other conditions are met.
Use of the derogation option requires that such an agreement has been entered into by the most representative labor market parties. It will therefore require an individual assessment of who constitutes the most representative labor market parties in each given area.
Finally, it is a condition for entering into an individual optout agreement that the employee gives his consent to this. The employee can also withdraw his consent at any time with reasonable notice.
Control and sanctioning
The Working Time Directive contains no provisions on sanctions and leaves it to the Member States to take the necessary measures.
It is the Working Environment Authority that supervises the provisions of the Working Environment Act. Penalties for breaches of the provisions of the Working Environment Act are contained in Chapter 15 of the Working Environment Act. This provision provides that breaches of the working time provisions on daily and weekly rest periods can be sanctioned with a fine or imprisonment of up to 1 year, cf. Section 82, subsection 1, no. 2 of the Working Environment Act.
In relation to the Working Hours Act, it follows from case law that the employee can be awarded compensation for a breach of the 48-hour rule in the Working Hours Act. In case U.2018.763 H, the employee was awarded compensation of DKK 50,000 for having worked more than 48 hours per week on average over four years.
In addition, the new changes imply that an employer must give the Working Environment Authority access to the registered information as far as agreements on deviations from the 48-hour rule are concerned. As part of the task of ensuring compliance with working environment legislation, the Working Environment Authority can prohibit or limit employees’ ability to work more than 48 hours per week on average, cf. Section 4 b, subsection 4, no. 2 of the Working Hours Act. The employer must also, upon request, provide the Working Environment Authority with information about concluded agreements in accordance with section 4 a, subsection 1, cf. Section 4 b, subsection 4, no. 3 of the Working Hours Act.
Recommendation
We recommend that employers draft a policy for working time registration to be included in the employee handbook, as well as an internal memo to the HR function and the management about which positions are deemed to be self-organizers and can thus be exempted from the obligation to register etc.
If an employee is deemed to be a self-organizer, this must appear from an addendum to the employment contract.
Further, to be GDPR compliant it is important to send out new privacy notices to the employees informing them of the registration and to implement the new rules in the general GDPR processes.
Since these are new rules, it is also our recommendation that the employees are informed about the time registration policy, as well as the rules for rest time and days off, at an orientation meeting.
Please reach out to our Danish member firm Mette Klingsten Law firm for further information about the new rules and advice and support in adopting new policies and procedures.
