The Danish Supreme Court clarifies the distinction between temporary agency work, the Danish Salaried Employees Act and fixed-term employment
Can a temporary agency worker simultaneously be covered by the Danish Temporary Agency Workers Act and the Danish Salaried Employees Act, and when does a temporary agency assignment cease to be temporary? The Danish Supreme Court has addressed these questions in a recent judgment involving two cases that clarify the interaction between the Danish Temporary Agency Workers Act and the Danish Salaried Employees Act.
Facts of the cases
The cases concerned three temporary agency assignments arranged by the same temporary work agency for two different user undertakings.
In the first case, a temporary agency worker was initially assigned to a user undertaking as a Supply Chain Analyst for a period of one year. The assignment was subsequently extended four times and lasted for more than three and a half years without interruption.
In the second case, two temporary agency workers were assigned to the IT department of a user undertaking for a period of three months. The assignments were subsequently extended seven times and lasted for approximately two years without interruption.
The temporary agency workers argued that the duration of the assignments and the numerous extensions meant that, irrespective of their status as agency workers, they should also be regarded as being covered by the Danish Salaried Employees Act, with the rights that follow therefrom, including salary during sickness, salary during the notice period and compensation.
The interaction between the Danish Temporary Agency Workers Act and the Danish Salaried Employees Act
Under the Danish Temporary Agency Workers Act, a temporary agency worker is an employee who is employed by a temporary work agency and assigned to a user undertaking to perform work on a temporary basis under the supervision and direction of the user undertaking.
To qualify as a salaried employee under the Danish Salaried Employees Act, it is, among other things, a requirement that the employee occupies a position of service and is subject to the employer’s instructions and authority.
Where a temporary agency worker performs salaried employee work for a user undertaking, the work is carried out under the direction and supervision of the user undertaking, while the employment relationship remains with the temporary work agency. Consequently, the worker does not occupy the position of service required under the Danish Salaried Employees Act in relation to either the temporary work agency or the user undertaking.
The Supreme Court therefore held that temporary agency workers covered by the Danish Temporary Agency Workers Act cannot, as a general rule, simultaneously be covered by the Danish Salaried Employees Act.
When does a temporary agency assignment cease to be temporary?
The Supreme Court further held that neither the duration of an assignment nor the number of extensions is, in itself, decisive in determining whether an assignment falls within the scope of the Danish Temporary Agency Workers Act. Even long-term assignments may remain covered by the Act.
The decisive factor is whether the assignment can reasonably be regarded as temporary. This depends on whether there is an objective and legitimate explanation for the user undertaking’s need for the temporary position and for any subsequent extensions.
Where an assignment loses its temporary nature, the worker falls outside the scope of the Danish Temporary Agency Workers Act. In such circumstances, a worker performing salaried employee work for the user undertaking may be regarded as occupying a position of service and therefore be covered by the Danish Salaried Employees Act.
The Supreme Court’s judgment of 18 June 2026
In the case concerning the temporary agency worker who had been assigned as a Supply Chain Analyst for more than three and a half years, the Supreme Court found that insufficient documentation had been provided to demonstrate that the assignment and its subsequent extensions were based on a genuine temporary need. The Court therefore concluded that the assignment lacked the necessary temporary character and that the worker consequently fell outside the scope of the Danish Temporary Agency Workers Act.
As the worker performed salaried employee work for the user undertaking, the temporary work agency was ordered to pay salary during sickness and salary during the notice period pursuant to the Danish Salaried Employees Act, as well as compensation of DKK 25,000 under the Danish Fixed-Term Employment Act.
In the case concerning the two temporary agency workers assigned to the IT department of the same user undertaking for approximately two years, the Supreme Court found that an adequate objective and legitimate explanation had been provided for the user undertaking’s temporary need. The assignments were therefore considered temporary, and the workers remained covered by the Danish Temporary Agency Workers Act.
Accordingly, the workers were not entitled to salary during sickness or salary during the notice period under the Danish Salaried Employees Act, nor were they entitled to compensation under the Danish Fixed-Term Employment Act.
On that basis, the Supreme Court upheld the judgment of the High Court.
Implications for employers
The judgment confirms that there is no fixed limit as to either the duration of a temporary agency assignment or the number of extensions that may be granted before an assignment falls outside the scope of the Danish Temporary Agency Workers Act. The decisive consideration is whether the assignment can still be regarded as temporary and whether there is an objective and legitimate justification for the extensions.
Although the financial risk will generally rest with the temporary work agency, the assessment of whether an assignment remains temporary will depend on circumstances relating to the user undertaking and its reasons for engaging and extending the assignment.
The judgment therefore highlights the importance of continuously documenting the temporary need underlying a temporary agency assignment, as inadequate documentation may result in the assignment falling outside the scope of the Danish Temporary Agency Workers Act, thereby exposing the temporary work agency to claims under the Danish Salaried Employees Act.
