In Danish law, an employee is often defined as a person who “receives remuneration for personal work in the course of employment“. This definition appears in the Employment Contracts Act and is widely used in Danish case law. However, a number of these rules are based on EU directives, and EU law uses a special concept of employee that in some cases goes beyond the Danish one.
EU law defines an employee as a person who, for a certain period of time, provides services for remuneration to and under the direction of another person. That concept must be interpreted functionally and autonomously, that is to say, independently of the national definitions of the Member States.
The assessment of whether a person is an employee or self-employed is based on a specific, overall assessment of the real relationship between the parties. The following factors speak in favour of employee status:
The employer has the power to instruct and supervise
Conversely, the following speaks in favour of self-employment:
In a judgment of 3 April 2025 (BS-49851/2024-HJR), the Supreme Court ruled on the scope of the concept of employee in relation to an agreement between a municipality and a father who provided support to his adult son with a disability under a temporary home care scheme. The municipality and the father had agreed that the father would provide support to the son 30 hours a week and received remuneration from the municipality for the support work.
The father claimed that he was an employee within the meaning of the Working Hours Act and that he had worked more than 48 hours a week and was therefore entitled to compensation under section 8 of the Working Hours Act.
The average working hours during a seven-day period calculated over a period of 4 months must not exceed 48 hours including overtime. Periods of paid annual leave and periods of sick leave are not included in or neutral in relation to the calculation of the average.
The Supreme Court referred to the Court of Justice of the European Union, including the judgment in case C-147/17 (Sindicatul Familia Constanţa), and emphasised that the concept of an employee in EU law must be defined on the basis of objective criteria, including the existence of a relationship of subordination.
In the specific case, the Supreme Court found that no such relationship had been established. The father was able to organise the work himself, there were no action plans, no requirements for reporting, and the municipality did not supervise.
On this basis, the father was not considered to be an employee, and the Working Hours Act did not apply.
The judgment also has a special significance for the interpretation of the 48-hour rule, as the Supreme Court found that even in the case that the father had been considered an employee, there would not have been a breach of the 48-hour rule because the municipality had not ordered the father to work more than 30 hours a week, but on the contrary had rejected this.
Misclassification can have serious consequences. If a person is wrongly classified as self-employed, an employer may be met with demands for:
Since large parts of the employment law legislation are mandatory for protection, these rights cannot be deviated from by agreement – even if both parties originally agreed.
The question of whether a person is an employee or self-employed cannot be determined solely on the basis of the wording of the contract or its organisational affiliation. This requires a specific assessment of the actual working relationship, where both Danish and EU law criteria must be included.
The Supreme Court’s judgment of 3 April 2025 underlines the importance of this assessment and provides another benchmark in relation to the interpretation of the concept of employee, especially in borderline cases.
Thanks to the following contributors to the website: Steen Evald (photograph), Stine Heilmann (photograph), Count Pictures (video), Kunde & Co. A/S (design), WeCode A/S (coding)
