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Collective agreement on statements of particulars extends to non-unionised workers as well

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

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The collective agreement for local government employees in Denmark, the KTO agreement, also covers non-unionised local government employees with respect to its provisions on statements of employment particulars. An employer was therefore entitled to correct an employee’s statements of particulars without having to pay compensation

If an employee receives an inadequate statement of particulars, the employer may be ordered to pay compensation. But if there is a collective agreement which allows the employer to correct the statement of particulars, the employee will not be entitled to compensation - even if the employee is not a member of the union that signed the collective agreement with the employer. This was established by the European Court of Justice and also by the Danish Supreme Court in a landmark ruling on implementation of the underlying Directive 91/533/EEC, also known as the Written Particulars Directive.

Most employers and employees know by now that employees are almost always entitled to a statement of particulars. This duty on the employer comes from the Danish Statement of Employment Particulars Act, which does not, however, apply to the extent that a similar duty is imposed on the employer by a collective agreement. In that case, the issue must be decided under the collective agreement and not the Danish Statement of Employment Particulars Act. As noted in a previous commentary by us, the ECJ ruled that the Danish model is compatible with EU law.

After the ECJ's ruling, it was for the Danish Supreme Court to decide the case in question. The case concerned an unemployed worker who had had several job training contracts with his local authority. The statements of particulars he had received on each occasion were inadequate, but when he claimed compensation under the Danish Statement of Employment Particulars Act, the local authority dismissed his claim and issued five correct statements of particulars instead, relying on its right under a special local government collective agreement to correct statements of particulars within 15 days of notice without having to pay compensation.

The issue before the Supreme Court was if the worker was entitled to invoke the Danish Statement of Employment Particulars Act or if the local authority was entitled to rely on the collective agreement. Based on the ECJ's ruling on the questions referred, the Supreme Court held that the employment relationship was governed by the collective agreement and not by the Danish Statement of Employment Particulars Act, even though there was no reference to the collective agreement in the original statements of particulars.

Also, the Supreme Court established that the job training contracts, all of which had been for a fixed period of between 2 and 12 months, could not be regarded as temporary employment relationships within the meaning of the Directive. The Supreme Court thus agreed with the local authority and Local Government Denmark that the worker was not entitled to compensation under the Danish Statement of Employment Particulars Act.