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Part-time employees are entitled to ”full” compensation for work-related injury

November 2010 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

In the assessment of incapacity for work, part-time employees must be treated in the same way as full-time employees if they did not have a limited capacity for work before the injury was sustained and if they are working part-time only as a temporary measure. So the Danish Supreme Court ruled in two precedent-setting cases.

The first question is whether the starting point for assessing the degree of incapacity should be that the employee was actually capable of working full-time before sustaining the injury. The other question is whether the employee’s annual pay should be that of the part-time employment or the full-time equivalent.

Part-time employment was not important
On the first question, the Supreme Court noted that the fact that an employee is working part-time when sustaining an injury is not important so long as the employee did not have a limited capacity for full-time work before the injury. And the employee in question, the Supreme Court held, did not have a limited capacity for work before the injury. Accordingly, the assessment of the degree of incapacity in this case was to be based on the employee being capable of working full-time.

On the second issue, the Supreme Court noted that if an employee is only working part-time as a temporary measure, the annual pay must be calculated on the basis of the full-time equivalent. The Supreme Court held that the employee in question was working part-time for family reasons that were temporary in nature. Accordingly, the employee's annual pay was to be determined on the basis of full-time employment.

Norrbom Vinding notes:

  • that the two cases show that, for part-time employees, the starting point when determining the degree of incapacity is that the employee is capable of working full-time at the time when the injury is sustained unless they had a limited capacity for work already before the injury; and
  • that annual pay, which forms the basis of the compensation awarded to the employee, is calculated on the basis of a discretionary amount based on the pay that would have been received in the equivalent full-time job if it can be proved that the employee was only working part-time as a temporary measure.