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Supreme Court of Denmark

Breach of the equal treatment principle in the Act on Temporary Agency Workers 

Case no. 90/2015

Judgment delivered on 23 August 2016

HK Danmark acting for A
Confederation of Danish Employers acting for LabVikar ApS

Adjustment and compensation for temporary agency worker

The case concerned whether A, during her employment as a temporary agency worker, had been paid in contravention of the equal treatment principle in Section 3(1) of the Danish Act on Temporary Agency Workers, and whether A consequently had a claim for adjustment of holidays, savings scheme, pension contributions and personal allowance as well as compensation for breach of the equal treatment principle. Also, the Supreme Court was to consider whether A was entitled to compensation under the Danish Act on the Employer's Obligation to Inform Employees of the Conditions Applicable to the Employment Relationship.

The Supreme Court held that A did not enjoy conditions of employment that were at least equivalent to those of the permanent employees, and that the equal treatment principle had therefore been breached in respect of holidays, personal allowance and the employer's share of the pension contribution.

However, the Supreme Court did not find that it was contrary to the equal treatment principle to disburse the funds in a savings scheme, which by its nature was equivalent to a normal allowance, as part of the regular pay, just as the employee's share of the pension contribution should not be adjusted. 

As A's rights under the equal treatment principle in the Act on Temporary Agency Workers had been infringed, the Supreme Court awarded her compensation in accordance with Section 8(3) of the Act. Based on an overall assessment, compensation was fixed at DKK 15,000.

The Supreme Court further agreed that it had not been shown that A before or during the temporary employment had received a letter of confirmation setting out the terms of employment. As the temporary employment agency had not complied with its obligation to provide information, A was entitled to compensation under the Act on the Employer's Obligation to Inform Employees. 

The Supreme Court partly affirmed the judgment of the Maritime and Commercial Court. 


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