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Weekly working hours not changed after period of considerable overtime

January 2009 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

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07-12-2007 - In July 2005, a woman was employed as a retail sales assistant. It was agreed that she would work 20 hours every week, but over a couple of months she worked a considerable amount of overtime.

Judgment by the Danish Western High Court

In July 2005, a woman was employed as a retail sales assistant. It was agreed that she would work 20 hours every week, but over a couple of months she worked a considerable amount of overtime. After almost six months, she became pregnant and then went on sickness leave. The employer informed her that when she returned from maternity leave, she could go back to working 20 hours a week.

The sales assistant brought a claim for constructive dismissal on the basis that this was a substantial change to her terms and conditions and that she was therefore entitled to receive her contractual notice and claimed that the pay she was entitled to during the notice period should be calculated on the basis of the average number of hours worked. In addition, she claimed 9 months' pay pursuant to the Danish Equal Treatment Act in compensation for the employer not informing her that she could go back to working 20 hours until during her pregnancy. Thus, according to the sales assistant, it was for the employer to prove that she had not been dismissed because of her pregnancy.

The Court held that there had been valid reasons for the considerable amount of overtime worked by the sales assistant during the first months of employment (a colleague off sick, new colleague to be trained and the sales assistant's own wish to work overtime). On those grounds, the employer informing her that she could go back to working 20 hours a week did not constitute a substantial change to her term and conditions and the Court found in favour of the employer on all points.

The case shows that:

  • A period with a considerable amount of overtime for a valid reason will not change the weekly working hours agreed for the employment.

Annemarie Boddum
amb@norrbomvinding.com

This information does not constitute legal advice and should not be relied upon as such

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