The Employee and Competency Agency have issued guidance on the self-organiser exemption

The Employee and Competence Agency has issued guidance on the agency’s interpretation on the self-organiser exemption.

Background

The rules on working time registration mean that as of 1 July 2024, employers are obliged to make an objective, reliable and accessible working time registration system available to employees to record an employee’s daily working hours. The purpose of recording daily working hours is to ensure compliance with daily and weekly rest periods and the  maximum weekly working time rule. Our previous article on the subject can be read here.

Interpretation of the self-organiser exception

The working time registration rule also introduced an exemption to the requirement to register working hours for “self-organisers”.

Certain conditions must be satisfied for an individual to be classed as a self-organiser, which are: that the length of the working hours (due to special features of the work performed) cannot be measured or determined in advance, or the employee can determine their own working hours and can either make independent decisions or has managerial functions.  If an employee meets the above conditions, the contract of employment must contain an express provision that the employee has self-organiser status.

On 21 June 2024, the Danish Employee and Competency Agency (MEDST) issued verbal guidance to several universities confirming that, according to the agency’s interpretation, academic staff and researchers can be considered self-organisers. This position is confirmed in an article published on 27 August 2024 in the Danish Association of Masters and PhD’s newsletter Forskerforum.

It appears from the article that, in accordance with the agency’s interpretation, the University of Copenhagen posted a notice on the university’s intranet, confirming that only technical and administrative staff without management duties are required to register their working hours. At the same time, it is stated that academic staff are exempt from the registration requirement, but that they can voluntarily register their working hours if they wish.

Considering this guidance Elisabeth Rasmussen, chief consultant at the University of Copenhagen, stated to Forskerforum, that: “It is MEDST’s immediate assessment that researchers, consultants and specialists can be exempted to a large extent on the basis of an individual assessment, as they are considered to be self-organizers.”

Similarly, Aarhus University also provided a statement to Forskerforum in which it stated: “For employees at Aarhus University, this means that researchers and lecturers in a broad sense, as well as managers with staff responsibility, can be exempted from the requirement to register working hours. According to the Danish Agency for Employees and Competence, this requires a specific individual management assessment, and employees who are exempted must receive an addendum to their employment certificate.”

University Director of the Technical University of Denmark (DTU) Claus Nielsen also informed Forskerforum that DTU received the same oral guidance that a large proportion of academic employees are not obliged to register their working hours. However, this was further elaborated on as academic staff are required to register their time spent in connection with research projects as documentary evidence for external funders.

We note

We consider that MEDST’s has given an extremely broad interpretation of the self-organiser exemption which may not be in line with the Court of Justice of the European Union judgments. The European Commission, based on the case-law of the Court of Justice of the European Union, has confirmed that the self-organiser exemption cannot be applied if the length of working hours is partly determined by the employer, meaning that the exemption only applies to those who can truly determine their own working hours. It is unlikely that many academic staff and researchers can wholly determine their working hours as part of their working time will be devoted to teaching, which would be determined by the academic institute.

Furthermore, the European Court of Justice has ruled in case C-585/19 (Academia de Studii Economice din Bucharest) that several experts at the university with full-time contracts of 40 hours per week were not covered by the exemption for self-organisers, as at least part of these experts’ working hours, including  university lecturers, were determined by their employer.

It is also stated in the European Commission’s interpretative communication to the Working Time Directive that managers are generally not covered by the exemption. It is therefore uncertain to what extent managers with personnel responsibility, consultants and specialists can be exempted from the registration requirement.

However, the final interpretation of the concept of self-organiser is up to the Danish courts, the labour law bodies and the European Court of Justice so this is an area that is likely to change.

If you are unsure of your obligations as an employer in connection with the time registration obligation, please contact us for further advice. We advise all types of employers on the time registration obligations and have developed a comprehensive time registration package to assist employers comply with their obligations pursuant to the time registration rules. The time registration package includes, among other things, a time registration policy, assessment of self-organizer status, supplements to employment contracts, information material for employees, etc. The package can be adjusted according to size and needs.

Please contact Mette Klingsten, Mads Bernstorn, Carley Wilson or Kirsten Have for further information about the time registration package.