March 9 2022 Working time statements not sufficient evidence of breach of 48-hour working time rule Norrbom Vinding | Employment & Immigration - Denmark Employment & Immigration FactsDecisionCommentAccording to the Working Hours Act, an employee's weekly working time must not exceed 48 hours when calculated as an average over a four-month period. Employees who work in excess of that will be entitled to compensation. However, are an employee's statements and evidence of long working days sufficient to prove a breach of the "48-hour rule"? That was one of the questions that the Eastern High Court had to decide in a recent case.FactsThe case at hand concerned a marketing manager. According to her terms and conditions, she had a 37-hour working week in which additional or overtime work may occur. Following a disagreement with the company's chief executive officer (CEO), the manager called in sick. Shortly after, she was dismissed on the grounds that her position was being eliminated.In the subsequent legal proceedings, which also concerned unfair dismissal, holiday pay and an insufficient statement of employment particulars, the manager submitted that she had exceeded the limit of weekly working hours in her former position.In support of her claims, the manager produced, among other things, her own working time statements. According to these statements, her working days started at 8.30am and ended when she sent the last email of the day.In court, the manager explained that she had worked far more hours than the statements showed, but the CEO did not agree with the claim and stated that "there is no justifiable explanation as to why she should have worked as much as she claims".Decision Firstly, the district court ruled in favour of the manager. However, the Eastern High Court did not find that the working time statements constituted sufficient evidence of overtime, as per the above calculation. According to the Court, the statements, which assumed that the manager had worked continuously between 8.30am and the time of the last email of the day, were not a true and fair way of calculating the manager's working time.The Court also highlighted the fact that:the manager had organised her own working time;her working time information was not supported by any witness statements; andshe had never informed her superiors that she allegedly worked more than 48 hours per week on a regular basis.Finally, the Court did not find that there were grounds to consider that the employer had obliged the manager to work in excess of the number of hours claimed by the manager. Accordingly, the Court ruled in favour of the employer and dismissed the manager's claim for compensation for breach of the 48-hour rule.CommentThis judgment confirms that the burden of proof still lies with employees if they believe that they have worked more than 48 hours on average, as per the four-month average calculation. However, the judgment also shows that information produced by the employee regarding their working time is not sufficient evidence on its own and must be supported by other facts surrounding the case.For further information on this topic please contact Rikke Falk Dambo at Norrbom Vinding by telephone (+43 35 25 3940) or email ([email protected]). The Norrbom Vinding website can be accessed at norrbomvinding.com.