A new law on employment certificates and certain working conditions is currently being debated in the Danish Parliament. The bill is expected to be passed on May 11th this year.
The bill introduces a number of minimum requirements for employment conditions and an expansion of employers' duty of disclosure. The law will enter into force on July 1, 2023, and it is therefore relevant for all employers to consider the new rules now.
In this article, CLEMENS provides an overview of the most important points of the bill.
Read the full bill "Act on employment certificates and certain working conditions".
Minimum requirements for working conditions
The new law includes a number of new minimum requirements for employment conditions.
This applies firstly to the probationary period. In future, a maximum duration of any probationary period will be set so that it may not exceed six months. The new regulation does not affect the rules on probationary periods in the Danish Salaried Employees Act.
In addition, the law stipulates a ban on the restriction of secondary employment. In the future, employers cannot prevent employees from taking on concurrent employment in the form of secondary employment if the employee can continue to work in accordance with the schedule set by the employer and if the secondary employment is not incompatible with the existing employment relationship. Whether the secondary employment is incompatible with the existing employment relationship will depend on a specific assessment, taking into account, for example, the protection of trade secrets and a potential conflict of interest.
In our experience, many employers use restrictions on access to secondary employment as a widespread standard term and it is therefore crucial to be aware of this new prohibition.
Furthermore, a restriction is introduced for employees with completely or predominantly unpredictable work patterns. They may only be required to work if the work takes place within predetermined reference hours and days and if the work is duly notified.
A new presumption rule is also introduced. In the case of on-call employment beyond three (3) months, the employer must prove that there is no employment contract with a minimum number of paid hours equal to the work performed by the employee in the last four (4) weeks.
Going forward, employees can request a more predictable and secure employment contract after six (6) months of employment, if such a type of employment exists at the company.
The last new minimum right means that in the future, the employer must cover the cost of training if it is training that the employer is obliged to provide to its employees.
A common feature of the new rights is that they will particularly benefit employees who have a looser connection to the labor market.
When and what should employees be informed about?
Under the bill, the most important information about the employment relationship must be provided no later than seven (7) calendar days after the employment relationship has commenced. Under the current rules, the information must be provided no later than one (1) month after the employment relationship has commenced.
The scope of the information to be provided to the employee is proposed to be expanded. Among other things, the employee must be informed about entitlement to training, social security contributions and payment of salary during periods of absence.
The essential information that must be provided no later than seven (7) calendar days after the employment relationship has commenced is
- Name and address of employer and employee
- Location of the workplace
- Job title or title
- Start date of the employment relationship
- Expected duration of the employment relationship for fixed-term contracts
- The duration and terms of any probationary period
- Salary and payment dates
- Normal daily or weekly working hours
- Information on guaranteed working hours, notice, etc. when the employee's work pattern is completely or predominantly unpredictable
In addition, the following information must be provided to the employee no later than one (1) month after the employment relationship has commenced:
- User company identity when hiring temporary workers
- Employee rights in case of paid vacation or other paid absence
- Notices of termination
- Possible right to education
- Collective agreements that regulate the employment relationship
- Identity of social security institutions that the employer may pay to
The bill also contains new rules for employers' duty of disclosure in connection with changes to the terms of employment. In future, such changes must be given "as soon as possible" and no later than the date on which the changes come into force.
Which employees need to be disclosed?
The current Employment Certificate Act applies to employees whose employment relationship has a duration of more than one (1) month and whose average weekly working hours exceed eight (8) hours. The bill extends the duty of disclosure here as well, as it is proposed that the Act applies to all employees in employment relationships when the agreed or actual working hours amount to more than an average of three (3) hours per week in a reference period of four (4) weeks.
In addition, the law will also apply to employees whose work pattern is completely or predominantly unpredictable.
The proposed limit of three (3) hours relates to both the predetermined working time and the time actually worked. Thus, if an employee works more than three (3) hours on average per week for a period of four (4) weeks, the employee will be entitled to information about the working conditions, regardless of what may have been agreed in advance regarding working hours.
The obligation to disclose working conditions is triggered as soon as it is clear that the employee works more than three (3) hours per week during the reference period.
The bill will thus mean that more employees will have the right to written information about the terms and conditions of their employment.
Protection against unfavorable treatment
If the employer has not complied with its duty of disclosure, the employee may be awarded compensation by the courts. The level of compensation remains unchanged in this regard.
A provision is proposed to protect employees who have invoked the rights in the Act, so that in the event of unfavorable treatment, they could be awarded compensation on this basis.
If it turns out that an employment law disciplinary sanction, such as termination, is due to the employee exercising a right under the law, the onus is on the employer to prove that this is not the case.
What do I need to ensure as an employer?
As an employer, you need to distinguish between the minimum terms and conditions and the duty of disclosure.
The minimum terms and conditions (see "minimum working conditions" above) apply to all employees, regardless of whether they joined before or after July 1, 2023.
As an employer, you must therefore ensure that all employment contracts do not contain terms that are incompatible with the minimum terms and conditions. In our experience, the upcoming ban on agreed restrictions on secondary employment in particular will require many employment contracts to be updated.
The extended disclosure requirements (see "When and what must employees be disclosed?" above) apply to all employees joining on or after July 1, 2023.
The decisive factor is the date of joining, and the obligation therefore also applies to employment certificates signed before July 1, 2023, if the employee joins on or after July 1, 2023.
Existing employees or employees joining before July 1, 2023 do not need to be provided with new employment certificates - even if the existing employment certificates do not meet the new disclosure requirements.
However, if an employee requests it, the employer must provide the missing information within eight (8) weeks of the request.
Ask CLEMENS about employment law
At CLEMENS, we will follow the development of the bill and keep you updated when the bill is finally passed.
If you have any questions about this article or how your company should approach the new rules, please feel free to contact CLEMENS employment and labor law specialists.
