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According to the Working Hours Act, the weekly working time must not exceed 48 hours calculated as an average over a 4-month reference period. Employees who work more hours than that will be entitled to compensation, but are the employees’ own information and statements on long working days sufficient evidence of breach of the 48-hour rule? That was one of the questions to be decided in this high court case.

The case concerned a marketing manager. According to her terms and conditions, she had a 37-hour working week but additional/overtime work might occur. Following a disagreement with the CEO, the marketing manager reported sick. Shortly after, she was dismissed on the grounds that her position was being abolished.

In the subsequent legal proceedings, which also concerned issues related to unfair dismissal, holiday pay and insufficient statement of employment particulars, the marketing manager submitted that the limit on the number of working hours had been exceeded.

In support of her claims, the marketing manager produced, among other things, her own working time statements. According to these statements, her working days started at 8:30 am and ended when she sent the last email of the day.

In court, the marketing manager explained that she had worked far more hours than the statements showed, but the CEO did not agree with this description and stated: ”There is no justifiable explanation as to why she should have worked as much as she claims”.

Statements did not convince the High Court
The Eastern High Court did not find that the working time statements constituted sufficient evidence that the marketing manager had had an average working week exceeding 48-hours calculated over a reference period of 4 months. According to the Court, the statements, which were based on the assumption that the marketing manager had worked continuously between 8:30 am and the time of the last email of the day, were not a true and fair way of calculating the marketing manager’s working time.

The Court also attached importance to the fact that the marketing manager had organised her own working time; that her working time information was not supported by any witness statements; and that she had not at any time pointed out to management that she allegedly worked more than 48 hours per week on a regular basis. Finally, the Court did not find that there were grounds for taking into account that the employer had imposed on the marketing manager an obligation to work or be available to an extent causing the number of working hours claimed by the marketing manager.

Accordingly, the Court found in favour of the employer and dismissed the marketing manager’s claim for compensation for breach of the 48-hour rule. It is worth noting that the district court had come to the opposite decision with regard to this rule.

Norrbom Vinding notes

• that the judgment confirms that, as a starting point, the onus of proof is still on employees if they believe that they have worked more than 48 hours on average calculated over a 4-month reference period; and
• that the judgment further shows that the onus of proof cannot be discharged solely through the employees’ own explanations regarding their working time, but the onus may be discharged if the facts of the case otherwise support the explanations.

The content of the above is not, and should not be a substitute for legal advice.