No violation of the Danish Working Time Act

Case no. BS-49851/2024-HJR
Judgment delivered on 3 April 2025

A
vs.
Municipality of Aarhus

The case concerned whether the the Municipality of Aarhus was liable to pay compensation to A under the Danish Act on Implementation of Parts of the Working Time Directive.

A and B’s son C, who suffered form atypical autism, had lived in a residential home since 2013 when he turned 18. However, he was not happy with the home. After a holiday with his parents in March 2016, C did not want to return to the residential home. A and B were prepared to let him stay with them until a new home could be found for him that they and C found to be acceptable.

At this time, A was unemployed and had to be available to the labour market in order to receive unemployment benefits. A and B asked the Municipality of Aarhus if they would employ A until a new residential home had been found for their son, so that A would not have to be available to the labour market, but could be with his son.

Against this background, the Municipality decided that C could be granted support under the Danish Act on Social Services to ensure that he had a fulfilling life with guidance and support for activities outside the home. In April 2016, the Municipality and A agreed that A would provide support in their home to C for 30 hours a week at an hourly rate of DKK 200. This agreement ran until it was terminated by the Municipality of Aarhus in the summer of 2017 when C had moved to a new residential home.

The main question was whether the agreement between A and the Municipality of Aarhus meant that he was to be regarded as a wage earner under the Working Time Act. If A was a wage earner within the meaning of the Act, the question was whether he was entitled to compensation for breach of the provisions of the Act on a maximum weekly working time of 48 hours, as A claimed that he had actually taken care of his son around the clock.

Based on an overall assessment, the Supreme Court found that no hierarchical relationship was established between the Municipality and A. Therefore, in this atypical situation, he could not be considered a wage earner for the Municipality within the meaning of the Working Time Act. As the statutory rule on maximum weekly working hours did not apply, A was not entitled to compensation.

The Supreme Court also noted that A was not required to work more than 30 hours a week and that it was not as part of the agreement with the Municipality that he had reportedly performed far more extensive care work for his son. As a result, there would be no breach of section 4 of the Working Time Act even if A was considered a wage earner for the Municipality.

The Supreme Court also stated that A’s view that, as part of an employment relationship with the Municipality, he was actually required to perform care work for his son around the clock could not in any case lead to him being successful, as the Act would not apply in such a situation.

The High Court had reached the same conclusion.