News from NorrbomVinding

Parental leave not reason for dismissal

Annette Jon Rasmussen — Tue, 07 Sep 2010 09:30:03 GMT

Category: Discrimination

NewsContent:

It is okay to dismiss an employee on parental leave if the employer is able to show that the reason is a decline in business.

Maternity, paternity and parental leave can never constitute grounds for dismissal, whether in whole or in part. That would be at odds with the Danish Act on Equal Treatment of Men and Women. In this complaint, the Danish Board of Equal Treatment was to consider whether parental leave was the real reason for dismissal.

A woman product manager was pregnant and went on pregnancy-related sick leave. She gave birth to twins and took maternity leave, followed by parental leave.

While she was on leave, the employer was forced to restructure and lay off staff because of a decline in business. The employee’s unit was hard hit, the number of staff being reduced from four to one. Since her job was cut, she was offered another job in the organisation. Refusing to accept the job offer, she was dismissed.

However, the employee believed that her parental leave was at least a contributing factor to her dismissal. She questioned the employer's need to restructure and did not find the new job offered appropriate. The pay was lower and the responsibilities less challenging compared with her former job. She therefore filed a complaint with the Board.

Leave was not the reason
The Board decided in favour of the employer, taking into account that three out of four employees in the employee’s unit were dismissed and that her job no longer existed. The employer had therefore shown that the reason for dismissal was poor finances, not parental leave.

Norrbom Vinding notes:

that the decision illustrates that employers can discharge the burden of proving that a dismissal is not based on maternity, paternity or parental leave if there is a major round of job cuts and the job held by the employee protected under the Danish Act on Equal Treatment of Men and Women is cut as part of this process.

Prison sentence to undercover journalists

Annette Jon Rasmussen — Thu, 02 Sep 2010 15:41:39 GMT

Category: General legal news

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There are limits to how far journalists can go in order to get their hands on a good story. Two journalists were therefore given a 20-day suspended prison sentence for going undercover at a care centre.

A journalist’s prime duty is to provide news of public interest. Uncovering rotten apples is part of the job as well, but – as this case illustrates – not at the expense of privacy.

Hidden camera
Two journalists were planning an investigative TV documentary about a care centre. One of them therefore applied for a job at the centre. She got the job and started filming everyday routines at the care centre with a hidden camera. The intention was to show a number of unacceptable conditions such as poor sanitary conditions, bedsores and a harsh tone at the centre.

The documentary was broadcast in primetime on Danish national TV. And the public reacted. Some residents and relatives were so offended that they filed a police report. In their opinion, the journalists had committed a criminal offence. The police then brought the case before the court.

Filming was a criminal offence
First, the Copenhagen City Court considered the issue of illegal filming. Weighing freedom of expression and information against privacy, the Court noted that, on the one hand, the documentary had sparked a public debate but, on the other hand, it showed very private scenes of people who were not aware of being filmed.

The Court found that the filming was illegal since it had been carried out in a non-public place and since the subjects had not given their consent. The fact that the documentary uncovered a number of unacceptable conditions did not legitimise the filming.

Regarding the issue of public sector employees’ freedom of expression, the Court established that the journalists had disclosed confidential information which they had received in the course of their employment. This is illegal.

For these offences, the journalists each received a 20-day suspended prison sentence. Also, they were ordered to pay compensation for injury to the feelings of a resident and several employees.

Norrbom Vinding notes:

that the case illustrates that, freedom of expression and information notwithstanding, journalists’ secret filming in non-public places may constitute an invasion of privacy; and
that the case further illustrates that it is a criminal offence for public sector employees – including undercover journalists – to disclose confidential information received in the course of their employment.

The letter that never arrived

Dorthe Pihl — Fri, 27 Aug 2010 10:55:15 GMT

Category: Termination of employment

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An employer was unable to prove that the warning of summary dismissal sent by post had in fact reached the employee. Thus, the summary dismissal was unjustified.

If an employer chooses to give an employee a warning of summary dismissal by letter, the employer must be able to prove that the letter has been sent. Otherwise, there is a risk that the summary dismissal will not be effective if the letter is never delivered. That was the result of this case before the Danish Maritime and Commercial Court.

The case concerned a service assistant who was terminated and, shortly thereafter, called in sick. She sent in two successive medical certificates which only stated that she was unfit for work. The employer then requested a medical certificate specifying the employee’s functional limitations.

After having requested such a medical certificate twice without result and informed the employee that failure to comply could have consequences for her sickness benefits, the employer sent a final warning. The warning made it clear that the employee would be summarily dismissed if she did not forward a medical certificate specifying her functional limitations. Since the employer still did not receive the requested certificate, the employee was summarily dismissed. The problem was, however, that – unlike the other letters – the employer’s warning of summary dismissal never reached the employee.

No certificate of posting
The Court was satisfied that the employee had duly acted on the employer’s requests by contacting her doctor. Therefore, the deciding factor in whether the summary dismissal was effective was whether the employee had in fact received the third warning letter. The employer being unable to prove the opposite, the Court had to conclude that the letter had never arrived and that the summary dismissal was therefore unjustified.

The case has not been appealed to the Danish Supreme Court.

Norrbom Vinding notes:

that the case illustrates that employers should ensure proof that a written warning of summary dismissal sent by post has reached the employee; and
that such proof is best obtained by a certificate of posting.

It should be noted that the case was decided based on the rules on medical certificates in force at the time.

Church – not a sect

Annette Jon Rasmussen — Wed, 18 Aug 2010 07:21:22 GMT

Category: Discrimination

NewsContent:

A district court awarded a supermarket employee DKK 25 000 in compensation because his manager called his church a sect.

Employers must provide a harassment-free working environment for their employees. Therefore, it is important that employers and managers set a good example, as shown in this case.

A guard at a supermarket was a minister in the Apostolic Church in his spare time. This led to a number of remarks from his manager, who referred to the church as a sect on several occasions. The guard did not like people speaking disparagingly about his church and therefore sued his employer, among other things for discrimination.

Derogatory remarks
Based on the oral evidence, the Court held that the manager had referred to the apostolic community as a sect on three occasions and that on at least one of those occasions his remarks could not be held to have been made in fun.

The Court said that the term ‘sect’ is usually used in a derogatory sense and that the manager could be assumed to know that the term was offensive to the guard – not least because the remarks came from the guard’s manager. On those grounds, the Court held that the harassment had been of such a nature as to constitute discrimination and ordered the employer to pay DKK 25 000 in compensation.

It is not yet known if the case will be appealed.

Norrbom Vinding notes:

that the case shows that in the test of harassment the courts will consider the defendant’s conduct in detail; and
that the case also shows that the employee will not always be required to openly say that they find the conduct offensive for such remarks to be held to constitute harassment within the meaning of the Danish Anti-Discrimination Act.

A clean home became a costly convenience

Annette Jon Rasmussen — Tue, 09 Mar 2010 13:48:28 GMT

Category: Business immigration

NewsContent:

The first private individual has now been convicted of using a house cleaner without a residence or work permit. The Danish Supreme Court set the fine at DKK 40 000.

Some foreign nationals must hold a residence and work permit to work in Denmark. Otherwise, their employer will face a fine, regardless of whether the employer is a business or a private individual. This principle was established by the Danish Supreme Court in this landmark case.

A private individual had hired a former au pair girl as a house cleaner for 3 hours every week. That arrangement continued for about 6 months. But since the former au pair girl held neither a residence nor a work permit, the Danish Prosecution Service decided to prosecute the employer.

The prosecution asked for a fine of DKK 120 000, taking the view that employing a foreign national without a work permit should cost DKK 10 000 per month or part of a month and another DKK 10 000 per month if the foreign national is also without a residence permit.

DKK 40 000 fine
The Supreme Court agreed with the prosecution that the fine should be based on a monthly DKK 20 000 since the au pair girl held neither a residence nor a work permit. But, having regard to the fact that she had worked only 3 hours a week and that it would therefore be disproportionate to base the amount of the fine on the number of months commenced, the fine was set at DKK 40 000.

The amount of the fine was a compromise between the fine imposed by the two lower courts, where the fine had been set at first DKK 30 000 and then DKK 60 000.

Norrbom Vinding notes:

that the case is interesting because it is the first time that a private individual is convicted of illegally employing a foreign national;
that the judgment accepts what is set out in the explanatory notes to the Danish Aliens Act about the normal level of fines; and
that the case therefore underlines the importance for employers to make sure that any foreign nationals they employ hold the necessary permits.

Amendment of EU Residence Regulations

Irfan Hussain — Thu, 10 Dec 2009 10:31:26 GMT

Category: Business immigration

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The Danish Ministry for Refugee, Immigration and Integration Affairs has amended the EU Residence Regulations. The amendment is based on the ECJ’s decision in Metock to overturn Irish family reunification provisions.

In Metock the European Court of Justice overruled an Irish law requirement that family members of an EU citizen must reside lawfully in another member state before they can apply for family reunification with a spouse living in a member state other than his/her own. Specifically, the Irish provisions required an African man to reside lawfully in another EU member state, eg England, in order to become eligible for family reunification with his British wife, who was living in Ireland. Click here to see our brief commentary on Metock.

The Danish EU Residence Regulations contained a similar requirement: family members of EU citizens from other EU member states than Denmark could seek reunification with their family in Denmark only if residing legally in an EU/EEA country or Switzerland.

With the amendment, the requirement of legal residence in an EU/EEA country or Switzerland has been lifted for family members and replaced by a requirement of actual and genuine residence in Denmark for the EU citizen with whom the family seeks reunification.

Also, provisions have been made to prevent abuse. More specifically, in cases of family reunification based on marriage, civil partnership or unmarried partnership, a declaration is required from both persons involved that the purpose of the partnership is not solely to obtain legal residence for the spouse/partner.

Norrbom Vinding notes:

Easier access for migrant workers

Irfan Hussain — Thu, 10 Dec 2009 10:31:43 GMT

Category: Business immigration

NewsContent:

The most recently proposed Bill to amend the Danish Aliens Act by securing easier access for qualified migrant workers has now been passed.

The key elements of the amendment are a relaxation/expansion of the Job Card Programme in relation to academic qualifications and the 'DKK 450 000 threshold' (DKK 463 000 in 2008), expansion of the Green Card Programme, introduction of group work permits and easing the conditions for foreign nationals to change jobs while in Denmark. For a detailed review of the individual elements of the amendment, please click here.

With regard to the 'DKK 450 000 threshold', it is expected to be reduced to DKK 375 000 through an amendment of the Danish Aliens Order to be effected together with the commencement of the amendment.

The amendment will come into force on 1 July 2008 – except for the provisions on the Green Card Programme, which will come into force with effect from another date which will be set administratively.

Norrbom Vinding notes:

Easier access for migrant workers

Irfan Hussain — Thu, 10 Dec 2009 10:31:44 GMT

Category: Business immigration

NewsContent:

The Danish Minister for Refugee, Immigration and Integration Affairs has tabled the long awaited Bill to amend the Danish Aliens Act.

Based on the political agreement reached on 28 February 2008 between the Government and a number of political parties, the Bill also incorporates various elements from the Government's international recruitment initiative entitled Denmark – a good place to work from October 2007.

The main features of the Bill are:

Relaxing the academic qualification requirements of the Job Card Programme: also foreign nationals with a bachelor's degree or similar level of education (3-4 years) will be eligible to apply for a residence and work permit under the fast-track Job Card Programme if they have been offered employment in one of the areas on the positive list, which is a list of skills shortage occupations. In addition, residence permits granted on the basis of the positive list can be renewed even if the permit holder's occupation has been removed from the list at the time of renewal because it is no longer in shortage, so long as the permit holder is still in the same employment.
Lowering the annual income minimum under the Job Card Programme: the annual income minimum will be reduced from the current DKK 463,050 to DKK 375,000. Unlike today, the amount will not be subject to indexation, but can be changed administratively. There will also be a change in how salary income is calculated as contributions to labour market pensions and personal pension plans will now count as salary income. Residence permits based on annual income can be renewed even if the permit holder's annual income is less than the annual income minimum if that amount has been increased in the meantime, so long as the permit holder is still in the same employment.
The Green Card Programme will be changed for migrants with non-Danish higher academic qualifications. In addition to adjusting the points system, the new Green Card Programme will enable highly skilled migrants to seek and take employment in Denmark for a period of up to 3 years regardless of job type.
Subject to certain conditions, groups of companies or businesses with at least 10 employees in Denmark may be allowed on the basis of a group residence permit to transfer employees from a foreign entity of the group or business to work in Denmark for a period of time without having to apply for a residence and work permit each time. A system of advance approval will also be introduced so that such businesses will no longer have to submit documentation with each application for a group residence permit that it is part of an international group of companies.
For some migrants who already hold a residence permit based on their job, it will be easier to change jobs before a residence and work permit has been granted for the new job. The application for a new residence and work permit must be submitted on or before the first day on the new job. And if they lose their job through no fault of their own, they will be allowed to remain in Denmark for a short period of time.

The Bill will also set a 30-day target for processing residence and work permit applications under the Job Card Programme and the Green Card Programme as well as group residence permit applications. Also, migrants and their families will be offered a starter kit that includes an information pack, an induction programme and free web-based courses in business Danish so that the family can begin to learn the language even before they arrive in Denmark.

If enacted in its current form, the Bill is expected to come into force on 1 July 2008. Norrbom Vinding will be reporting on the Bill's progress through the Danish Parliament on this website.

Norrbom Vinding notes:

ECJ overturns national family reunification provisions

Irfan Hussain — Thu, 10 Dec 2009 10:31:44 GMT

Category: Business immigration

NewsContent:

The ECJ recently overturned Ireland’s national provisions on family reunification between EU citizens and non-EU citizens. Also in other EU member states the judgment may affect the right of migrant workers to bring their family with them.

In July 2008, the European Court of Judgment (ECJ) delivered its judgment in a case about family reunification. The implications of the judgment on Denmark’s immigration rules have been the subject of lively media debate in recent weeks: will it open up our borders to immigration and will it affect Danish immigration policy and its employment policy aspects?

The case from Ireland was commenced by four non-EU citizens, who had come to Ireland in the period from 2004 to 2006. There they applied for political asylum, but were refused. In Ireland each of them married a non-Irish EU citizen. They then applied for a residence permit on the basis of marriage to an EU citizen. But those applications were also refused.

The question before the ECJ was whether the Irish immigration rules were compatible with a Directive from 2004 on the right of EU citizens and their family members to reside freely.

In the ECJ’s opinion, the Directive did not allow member states to require family members of an EU citizen to reside lawfully in another member state before applying for family reunification with a spouse living in a member state other than his/her own. The freedom of movement of EU citizens is restricted if reunification with family members in other member states is difficult to obtain, the ECJ said.

According to the ECJ, this also applies even if the non-EU citizen does not marry the EU citizen until after the EU citizen has gone to live in another member state. The Directive, however, does not prevent individual member states from checking for fraud or marriage of convenience and member states can also refuse family reunification in special circumstances.

Norrbom Vinding notes:

employers should note that the judgment does not directly concern the basis on which workers from EU member states are allowed to reside in Denmark, but
to the individual employee the question of whether it will be possible to bring family members to the country of employment will usually be very important. The ECJ’s judgment may therefore provide another route to entry for the EU citizen who would otherwise face difficulties bringing his family to the member state in which he will be working.

Another relaxation of the Eastern Europe Agreement

Irfan Hussain — Thu, 10 Dec 2009 10:31:27 GMT

Category: Business immigration

NewsContent:

The political parties behind the Eastern Europe Agreement recently agreed to further relax the Agreement, which is a transitional scheme to help Danish businesses recruit from the 10 new EU Member States (Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia). For more information about the Eastern Europe Agreement, please see our feature entitled Recruitment abroad I.

As a result, individuals from those countries will no longer be required to have a residence and work permit if employed to carry out work covered by a collective agreement. Similarly, specialists, scientists and teachers will also be exempt from the residence and work permit requirement if their employer has entered into a collective agreement.

The political agreement does not expressly say whether salaried employees in managerial positions will also be covered by the relaxed rules, but since salaried employees in managerial positions are covered by the same statutory provision which governs scientists, teachers and specialists, it would seem obvious for also salaried employees in managerial positions to benefit from the relaxed rules.

Although some individuals from the new EU Member States will thus be exempt from the residence and work permit requirement, they will still – like nationals of the other EU Member States – need an EU residence certificate if their stay in Denmark exceeds 3 months.

The political agreement also contains the following elements:

Monitoring the influx of foreign labour
Stricter regulatory control of foreign companies’ and foreign workers’ compliance with Danish law with respect to taxes, working environment and residence
Providing a framework for the social partners to work together to ensure that foreign companies will be covered by a Danish collective agreement
Improving information about the Danish labour market to foreign companies and employees on secondment in Denmark

The political agreement will of course be followed up by legislative proposals to amend the existing rules. The legislative proposals are expected to be launched in time for them to become operative on 1 January 2008.

Norrbom Vinding will, of course, report on the progress of the legislative proposals.

Norrbom Vinding notes:

Extension of Job Card Scheme

Irfan Hussain — Thu, 10 Dec 2009 10:31:51 GMT

Category: Business immigration

NewsContent:

The Job Card Scheme, which has already been described on this website in January, essentially provides foreign nationals with a fast-track route to a residence and work permit for up to 3 years if they have a job offer in hand and the job is on the “positive list” of approved job categories.

On 16 March 2007, the Danish Ministry of Refugee, Immigration and Integration Affairs issued a press release announcing an extension of the positive list under the Job Card Scheme with immediate effect.

The extension of the positive list means that midwifes, dentists, veterinary doctors, architects, lawyers, economists and various other occupational groups are now allowed to apply under the Job Card Scheme if they have a specific job offer. The extension also means that engineers will be required to show that they have received at least 3 years’ university education (BA equivalent).

Moreover, the Danish Parliament is currently considering a bill which, if adopted, will open up the scheme to foreign nationals who have been offered a job in Denmark if the annual pay is at least DKK 450,000 and the terms of employment and pay are normal in Denmark. There is no requirement for the job to be one of those stated on the positive list.

For more information about the Job Card Scheme, visit www.nyidanmark.dk.

Norrbom Vinding notes:

Extension of Job Card Scheme with effect from 1 May 2007

Irfan Hussain — Thu, 10 Dec 2009 10:31:51 GMT

Category: Business immigration

NewsContent:

The Bill tabled by the Danish Minister for Refugee, Immigration and Integration Affairs to extend the positive list under the Job Card Scheme has now been passed and comes into effect today. The Green Card Scheme proposed under the Bill has also been passed, but no effective date has been announced yet. Please see the features section of this website for more information about the Bill to extend the Job Card Scheme and introduce a Green Card Scheme.

The passing of the Bill means that as from 1 May 2007, foreign nationals with either an employment contract or a job offer in hand may be eligible for a residence and work permit under the fast-track route that is the Job Card Scheme if:

the job in question is within one of the skills shortage areas identified on the list of approved job categories (the positive list), or
the annual pay is at least DKK 450,000 (currently approximately EUR 60,400) and the pay and employment terms are in line with normal Danish practice.

The advantage of applying for a residence and work permit under the Job Card Scheme is that straightforward applications will be processed within 30 days and that the question of whether the job could be carried out by a Danish resident (whether a Danish or foreign national) or an EU resident is not addressed.

If the annual pay is at least DKK 450,000 and the pay and employment terms are normal by Danish standards, the nature of the work involved will have no relevance.

A residence permit granted under the Green Card Scheme is not a work permit; it simply entitles the holder to stay in Denmark for a period of up to 6 months for the purpose of seeking employment.

For more details about the Job Card Scheme and the positive list, please check the features section of this website.

If you have any questions or queries about the Job Card or Green Card Schemes, please contact:

Norrbom Vinding notes:

New EU Residence Regulations

Irfan Hussain — Thu, 10 Dec 2009 10:32:05 GMT

Category: Business immigration

NewsContent:

The Danish Minister for Refugee, Immigration and Integration Affairs recently issued regulations on the right of foreign nationals covered by EU rules to stay in Denmark, also known as the EU Residence Regulations.

The Regulations cover EU nationals and family members and regulate their right to stay in Denmark. EEA and Swiss nationals are placed on a par with EU nationals and thus have the same rights as EU nationals.

A new feature is that EU, EEA, Swiss and third country nationals seconded to Denmark are entitled to stay if their secondment is for more than 3 months and for the purpose of providing services on behalf of a service provider established in the EU.

With the Regulations, the rules governing family members' right to stay in Denmark beyond the 3 and 6 months, respectively, specified in the Danish Aliens Act are now the same for family members of EU nationals - the "old" member states as well as the "new" ones - and for family members of EEA and Swiss nationals. The Regulations also regulate the right of family members of such secondees to stay in Denmark if the secondee is in Denmark for the purpose of providing services on behalf of a service provider established in the EU.

Other key features of the Regulations include:

Provisions governing the right of family members of Danish citizens to stay in Denmark

Provisions governing the granting of registration certificates to EU nationals seconded to Denmark

Provisions governing the granting and revocation of residence cards to both third country nationals seconded to Denmark and their family members

The Regulations became effective on 1 May 2008. The former EU Residence Regulations and the former EU/EEA Residence Regulations were repealed with effect from the same date.

The Regulations are available in Danish here.

Norrbom Vinding notes:

No work permit required for Eastern European workers

Irfan Hussain — Thu, 10 Dec 2009 10:32:08 GMT

Category: Business immigration

NewsContent:

From 1 May 2009, workers from the new EU member states will have access to the Danish labour market on equal terms with other EU nationals, according to a new Bill introduced by the Danish Ministry of Refugee, Immigration and Integration Affairs.

On 1 May 2004 when EU was enlarged, a transitional arrangement was implemented which meant that a residence and work permit was required for nationals of the new EU member states. Since then, the transitional arrangement has been relaxed on several occasions in order to eventually phase out the arrangement. A new Bill proposes to abolish the remaining provisions with effect from 1 May this year.

The Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia were the countries that joined the EU in 2004. The transitional arrangement introduced in that connection required workers from those countries to have a residence and work permit. And when Bulgaria and Romania joined on 1 January 2007, workers from those countries became covered by the arrangement, too.

One of the results of the gradual liberalisation of the transitional arrangement is that, today, a work permit is no longer required if the job is covered by a collective agreement. If enacted, the Bill will abolish the transitional arrangement altogether and all nationals of the new EU member states will then be subject to the rules that apply to other EU nationals with effect from 1 May 2009.

This means that, in future, nationals of the above new EU member states will be entitled to work in Denmark without a residence and work permit. If their stay exceeds 3 months, however, they will be required to apply to the relevant regional state administration for a registration certificate.

Norrbom Vinding will, of course, be following the Bill’s passage through the Danish Parliament.

Norrbom Vinding notes:

Planned simplification of business visa rules and administration

Irfan Hussain — Thu, 10 Dec 2009 10:32:11 GMT

Category: Business immigration

NewsContent:

The Danish Ministry of Refugee, Immigration and Integration Affairs set up a task force in June 2007 to look at options for slimming down business and tourist visa rules and administration. The resultant report, which was published in January 2008 by the Ministry, proposed the following recommendations:

Establishing an advance clearance procedure to make it easier and quicker for business to have visa nationals visit them on business

Easing requirements as to the number of days allocated for business purposes in connection with combined business and leisure visits to Denmark

Reducing application time by setting up a hotline between Danish embassies and consulates general abroad and the Danish Immigration Service, increasing the amount of information available on the Danish Immigration Service website and various other measures

Exploring the possibilities of empowering Danish embassies and consulates general to deny visas

The intention is to implement all of the task force's recommendations during 2008 to improve service levels and speed up the visa process.

Norrbom Vinding will, of course, be reporting on the progress of this initiative and any legislative or administrative changes in this area.

Norrbom Vinding notes:

Posting of Workers from the new EU Member States

Irfan Hussain — Thu, 10 Dec 2009 10:32:12 GMT

Category: Business immigration

NewsContent:

Danish newspapers and current affairs programmes have been focusing on the Danish business sector’s recruitment of citizens from the new EU Member States to meet its human resource needs. One of the questions raised in this context is whether Danish businesses are circumventing the requirements for a residence and work permit and Danish terms of employment and pay by having workers posted to Denmark from an entity based in one of the new EU Member States.

This question arises because posting falls outside the transitional scheme for citizens from the new EU Member States. Under this scheme, which is also known as the Eastern Europe Agreement, such citizens must, if employed by a Danish entity, have a residence and work permit and work on terms and conditions no less favourable than those applicable under the relevant collective agreements. If posted to work in Denmark, however, such citizens are not required to obtain a residence and work permit. Nor is there any requirement for minimum pay although the posting entity will be subject to the Danish Act on Posting of Workers and its requirements for compliance with the Danish statutory provisions on working time, working environment, holiday, etc.

Still, posting is not without restrictions and it is therefore important to note that the following conditions must be met:

The posted worker must be a permanent employee of an entity based in another EU/EEA Member State providing services to Denmark
Before his/her posting to Denmark, the posted worker must be a legal resident of the posting country and be entitled to work in that country
The posted worker must satisfy the conditions for entry and residence laid down in the Danish Aliens Act
The posted worker must have the opportunity to return to the posting country after the work has been carried out

It is important to note that no exemption is available from the residence and work permit requirement if the worker is only loosely attached to the employing entity or is employed by an entity established for the purpose of circumventing the residence and work permit requirement. Nor is an exemption available if the worker works for a temp agency and is posted to a temp job in Denmark. Such an arrangement constitutes hiring-out of workers and thus falls within the rules of the Eastern Europe Agreement. If a citizen from one of the new EU Member States is working in Denmark as a “posted” employee, but is in fact employed by the Danish entity, this situation also falls within the rules of the Eastern Europe Agreement.

Danish businesses looking to recruit from the new EU Member States should therefore first consider the options available in relation to posting, employment or hiring-out and the requirements associated with each of the options in relation to residence and work permits and terms of employment and pay. In this context it is important to understand the crucial distinction between posting and hiring-out or direct employment of workers since failure to do so may lead to non-compliance with the Eastern Europe Agreement and thus the Danish Aliens Act and a risk of getting into trouble with the trade unions.

Norrbom Vinding notes:

Relaxation of business visa rules

Irfan Hussain — Thu, 10 Dec 2009 10:32:14 GMT

Category: Business immigration

NewsContent:

The Danish Parliament has passed the Bill introduced by the Danish Ministry of Refugee, Immigration and Integration to relax and improve the efficiency of business visa rules.

It should be easier for people travelling on business to Denmark to obtain a visa. That was one of the objectives behind the amendment to the Danish Aliens Act which was recently passed by a large majority in the Danish Parliament.

In future, Danish businesses may apply for a licence to sponsor visa nationals coming to Denmark on business. If such a licence is granted, Danish embassies will be allowed to issue visas to foreign nationals going to Denmark to visit the business in question without first consulting with the Danish Immigration Service. This new measure will speed up the process. For more details of the amendment, please click here to see our previous comments on the Bill.

The major part of the amended provisions will enter into force on 1 March 2009. The licensing system, however, will not enter into force until 1 July 2009.

Norrbom Vinding notes:

Business visa rules to be relaxed

Irfan Hussain — Thu, 10 Dec 2009 10:32:14 GMT

Category: Business immigration

NewsContent:

The Danish Ministry of Refugee, Immigration and Integration Affairs has introduced a Bill intended, among other things, to relax and improve the efficiency of business visa rules.

‘One of the main considerations behind this Bill is to ensure alignment between the visa rules and the wishes and needs of the business sector...’. This is the reason given by the Minister for her new Bill at its introduction to the Danish Parliament in early October. One of the objectives of the Bill is to make it easier to obtain a visa for people travelling on business to Denmark. The Bill was announced in the Government’s legislative programme, as already reported by Norrbom Vinding. Click here to see the article.

The easier access for people travelling to Denmark on business will be ensured through a licensing system for Danish businesses to receive visa nationals on business visits. Embassies will be allowed to grant bona fide visas without consulting with the Danish Immigration Service if the purpose of the visa applicant’s visit is to visit the sponsoring Danish businesses. The fact that embassies will no longer have to consult with the Danish Immigration Service will speed up the process.

However, the Bill details a number of requirements that must be met before people travelling to Denmark on business will be eligible to enter the country under the simplified procedure. For one thing, it proposes to require businesses seeking to be licensed under the new system to be registered in Denmark and have a presence in Denmark. For another, they must designate a contact for the embassies and must, based on their registered activities, have a natural commercial need to have business dealings abroad.

Although a business has been licensed, the general conditions of a business visa must still be satisfied. This means, for instance, that the sponsoring business will need to provide documentation of the business purpose of each individual visit, including that there is a natural relationship between the visa applicant’s occupation and the activities of the sponsoring business. This documentation could, for instance, be in the form of an invitation.

Provisions have been made to prevent abuse of the new system. More specifically, licences can be revoked if persons sponsored by a licensed business abuse their visa, eg by working illegally in Denmark during the visa period or staying in Denmark after the visa has expired.

Norrbom Vinding will, of course, be reporting on the progress of this Bill, which has just received its first reading.

Norrbom Vinding notes:

Relaxation of requirements for migrant workers from the 10 new EU countries new rules adopted

Irfan Hussain — Thu, 10 Dec 2009 10:32:14 GMT

Category: Business immigration

NewsContent:

The Bill to relax the work permit requirements of the Danish Aliens Act for nationals of the 10 new EU member states – Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia – has now been passed by the Danish Parliament to come into force on 1 May 2008.

Other than the commencement date, the new Act is identical to the Bill as originally introduced, which was described in an earlier article.

Norrbom Vinding notes:

The Job Card Programme - increase in minimum annual income level

Irfan Hussain — Thu, 10 Dec 2009 10:32:25 GMT

Category: Business immigration

NewsContent:

The Danish Job Card Programme, which provides a fast track to a residence and work permit for third country nationals, was extended with effect from 1 May 2007 to also include jobs paying over a certain level. Thus, if the Danish job offered to the applicant means that he/she will be earning over the minimum amount, the work permit will be granted on the strength of annual income alone, regardless of industry and job type.

The minimum annual income level, which is subject to change every year, is DKK 463,050 in 2008 (approx. EUR 62,150).

Please click here to see an earlier article about the Job Card Programme on this website.

Norrbom Vinding notes:

The Job Card Scheme: A useful tool for international recruitment

Irfan Hussain — Thu, 10 Dec 2009 10:32:25 GMT

Category: Business immigration

NewsContent:

In Denmark, the business sector is more than ever dependent on access to qualified employees both in and outside Denmark. But Danish businesses looking to recruit abroad are faced with the problem that non-EU citizens most often need to be issued with a residence and work permit before they can take up employment in Denmark. This process can be quite lengthy and there is no certainty that it will result in a residence and work permit.

In such recruitment situations the Job Card Scheme is useful. The scheme offers a fast-track route to a residence and work permit for up to three years for special categories of jobs (the “positive list”).

Under the Job Card Scheme, the Danish Immigration Service will not request a statement from an industry organisation/union if the job involved falls within one of the categories on the positive list. Provided that the applicant has received a specific job offer detailing the terms of employment and salary and that such terms of employment and salary are normal by Danish standards, the Danish Immigration Service will generally grant a residence and work permit immediately. This means that straightforward applications will be processed within 30 days.

The positive list issued by the Danish Immigration Service sets out the categories of jobs covered by the scheme:

Engineers
Knowledge workers in natural science and technology
Doctors
Nurses
IT specialists (if capable of proving that they have received at least three years’ university education)

The positive list, which is non-exhaustive, is revised on a regular basis. Applications relating to categories of jobs which are not on the positive list will be considered on a case-by-case basis.

EU citizens are exempted from the work permit requirement, which means that the Job Card Scheme will normally be of little relevance to this group. However, one advantage of applying under the Job Card Scheme - also to EU citizens - is that it is easier for the applicant to bring its family into Denmark, e.g. non-EU family members of EU citizens.

Norrbom Vinding notes:

Work permit no longer required for Eastern European workers

Irfan Hussain — Thu, 10 Dec 2009 10:32:28 GMT

Category: Business immigration

NewsContent:

The most recent Bill to amend the Danish Aliens Act, which intended to abolish the transitional arrangement for workers from the new EU member states, has been adopted by the Danish Parliament with effect from 1 May 2009.

As a result of the amendment, and as mentioned in our previous commentary on the Bill, nationals of the new EU member states are now entitled to work in Denmark without applying for a residence and work permit. They will only be required to apply to the relevant regional state administration for a registration certificate if their stay in Denmark exceeds 3 months. This means that workers from the new EU member states are now on an equal footing with workers from the other EU member states.

The Bill was passed as introduced.

Norrbom Vinding notes:

Bill to require registration of seconded employees passed

Irfan Hussain — Thu, 10 Dec 2009 10:31:32 GMT

Category: Business immigration

NewsContent:

The Danish Parliament has amended the Danish Posting of Workers Act. This means that with effect from 1 May 2008, foreign entities seconding employees into Denmark will be required to provide certain details to the Danish Commerce and Companies Agency for regulatory and statistical purposes. The relevant details include secondment start and end dates, the address of the entity's activities in Denmark and the secondee's identity.

The amendment is a consequence of the East Agreement of 29 June 2007, which has been discussed in previous news items. It was agreed among other things to improve monitoring to ensure that foreign entities comply with Danish law in connection with secondments.

The amendment will also make it easier to monitor compliance with health and safety rules and tax legislation.

Norrbom Vinding notes:

Fined for employing an illegal foreign national

Annette Jon Rasmussen — Tue, 30 Mar 2010 08:41:33 GMT

Category: Business immigration

NewsContent:

Some foreign nationals need a residence and work permit in order to work in Denmark. If they do not hold such a permit, it may cost their employer a fine.

The responsibility for ensuring that foreign nationals hold the necessary residence and work permit is the employer’s. This principle was established in a case from the Court in Lyngby.

Before the new electronic tax card was introduced on 1 January 2008, it would always be clear from the paper-based tax card if the foreign national had no work permit. Then the tax card would bear a stamp saying "Tax card is not a work permit".

An Iranian national had worked for a local authority for 4 years. Before that, she had lived in Denmark for almost 3 years. She had a civil registration number and a tax card which did not say: ”Tax card is not a work permit”. As a result, her employer could not know that her residence and work permit, which had been obtained through marriage, no longer existed as the couple had divorced already before she was employed by the local authority.

Although the employee was without legal residence in Denmark throughout her employment, she was issued with a ‘clean’ tax card every year. The Danish Immigration Service thought, in spite of the tax card and her employment, that she had left the country.

Her employer knew nothing about all this. At one point, however, the employer became aware that the employee was involved in an inquiry by the Danish Immigration Service. After contacting the employee’s lawyer and the tax authorities, the employer was informed by the tax authorities that before issuing a tax card, they would always check that the necessary work permit had been issued. The employer was thus assured that if the tax card was ‘clean’, there was no reason for concern. The employer therefore did nothing further.

When the Danish Immigration Service became aware that the employee was working for the local authority, the police was contacted and the employer was charged with contravening the Danish Aliens Act.

DKK 20 000 fine
There was no doubt that the employer had employed a foreign national without a work permit.

The prosecution asked for a DKK 960 000 fine, equivalent to DKK 20 000 for each month in which the employee had had no work or residence permit.

But the fine imposed by the Court was much lower – DKK 20 000 in total. The Court took into account that it was standard practice for the employer to rely on the paper-based tax card and whether it bore the stamp, but that the employer had failed to contact the appropriate authority when it became concerned about the employee’s legal status.

Norrbom Vinding notes:

that the case illustrates that employers risk being fined for employing a foreign national without the necessary residence or work permit; but
that such a fine will be reduced considerably in relation to the normal rates if the employer has set up adequate routines to check the legal status of foreign nationals in their employment.

It should be noted that the problem concerning the stamp on the paper-based tax card has changed with the introduction of the electronic tax card.

Designer not entitled to royalties due to joint authorship

Irfan Hussain — Thu, 10 Dec 2009 10:31:38 GMT

Category: HR/IPR

NewsContent:

The case concerned copyright in computer software developed in collaboration between a group of general practitioners, a software developer and a designer. A foundation and publisher of a medical journal had asked a software developer to develop against a fee a software tool on CD-ROM containing various medical data for sale to general practitioners. A designer was engaged to handle graphics. After a couple of years, the software developer left the project, which was carried on by the client and the designer. The designer carried out the updates and modifications requested by the client.

In 2002, when the designer decided to charge royalties for his services, the client refused to pay. Notwithstanding their disagreement, the parties carried on the project for another couple of years. The software contained a notice stating that the client was the copyright owner, but the original developers issued a written statement that they had assigned the copyright to the designer without payment.

The Court said first of all that the software developer had assigned his rights to the designer, but that this did not mean that the designer owned full copyright of the software. The Court then held that the software was a work of joint authorship. Accordingly, neither the client nor the designer was entitled to claim royalties from the other, but they were entitled to royalties from the users of the software. On those grounds, the designer was not entitled to royalties from the client.

Norrbom Vinding notes:

that the case is interesting because it shows that, unless otherwise agreed by the parties, their actual conduct may mean that neither party owns full copyright, but that copyright subsists and must therefore be exercised jointly.

It should be noted that if the software had been developed by the designer in the course of an employment relationship with the client, copyright in the software would pass to the client pursuant to section 59 of the Danish Copyright Act. The case is on appeal to the Danish Supreme Court.