At a glance: hiring employees in Denmark

Background information on applicants

Are there any restrictions or prohibitions against background checks on applicants? Does it make a difference if an employer conducts its own checks or hires a third party?

Under the EU General Data Protection Regulation (Regulation (EU) No. 2016/679) (GDPR) and the Act on Supplementary Provisions to the GDPR, employers are in some situations restricted in their use of personal data. Personal data includes data about employees and applicants. Employers are, therefore, only to a certain extent allowed to carry out background checks on applicants, whether by themselves or through a third party.

Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?

Under the Danish Act on the Use of Health Data in the Labour Market, employers are only entitled to request health data from an applicant to determine whether the applicant suffers from or has suffered from a disease if this will adversely affect the applicant’s capacity to perform the job in question. An employer cannot ask questions and inquire about a possible future condition or the risk of developing such a condition.

Requiring a general medical examination is only allowed in very limited circumstances; for example, for health and safety reasons, to find out if the applicant can perform the job in question. In those cases, it is a requirement that the employer (or the employer’s organisation) has an agreement with the relevant trade union on such medical examination, and that this agreement be forwarded to the Minister for Employment. If it is not possible to conclude such an agreement, permission to require such medical examination must be obtained from the Minister for Employment. If these formal requirements are fulfilled, the employer may be entitled to reject an applicant who refuses to undergo a medical examination.

Are there any restrictions or prohibitions against drug and alcohol testing of applicants?

Under the GDPR and the Act on Supplementary Provisions to the GDPR, information about drug and alcohol use constitutes ‘special category data’ and may, therefore, only be collected for legitimate purposes.

Asking employees to submit to a drug or alcohol test (or both) is an employer’s prerogative. The tests must, however, only be requested for legitimate and reasonable grounds (eg, for health and safety reasons), and the testing must affect the employees as little as possible.

Employers are, therefore, generally not prohibited from requiring a drug or alcohol test (or both) as a condition of employment, but it depends on the job in question.

Hiring of employees

Are there any legal requirements to give preference in hiring to, or not to discriminate against, particular people or groups of people?

There is no legal requirement to give preference in hiring particular people or groups of people.

Several statutes prohibit discrimination in the labour market (including in the hiring process) on grounds of gender, race, colour, religion or belief, political opinion, sexual orientation, age, disability, or national, social or ethnic origin.

However, affirmative action is allowed in certain (but very limited) situations. For instance, employers may implement specific measures to promote the employment of elderly or disabled persons. Employers are, however, not allowed to give preference to an elderly or disabled person who is less qualified for the job than other candidates.

Must there be a written employment contract? If yes, what essential terms are required to be evidenced in writing?

As a general rule, employers must provide their employees with a written statement of particulars outlining the terms of employment. Under the Danish Statement of Employment Particulars Act, the statement of particulars (which will often be a contract) must at least include:

• the name and the address of the employer and the employee;
• the work address;
• a job description, job title or job category;
• the commencement date;
• the expected duration of employment (if not indefinite);
• holiday and holiday pay;
• notice periods (employee’s and employer’s);
• applicable or agreed pay;
• hours of work; and
• specification of any collective agreements affecting the employment.

Also, any other material terms must be mentioned.

To what extent are fixed-term employment contracts permissible?

Fixed-term employment contracts are permissible in Denmark, and there are no rules for the maximum duration of such contracts, whereas renewal of fixed-term employment contracts is only allowed if the renewal is justified on objective grounds.

Employers are not allowed to treat temporary or fixed-term employees less favourably than their permanent employees unless the differential treatment is based on objective grounds and is not exclusively based on the temporary status of the employment relationship.

What is the maximum probationary period permitted by law?

In Denmark, there is no general legislation regarding probationary periods. However, for salaried employees (white-collar employees), a probationary period of up to three months may be agreed upon. This period cannot be extended. During the probationary period, both parties are entitled to terminate the employment contract by giving two weeks’ notice.

For manual employees (blue-collar employees), there is no legislation on the maximum duration of probationary periods. Such provisions may, however, follow from an applicable collective agreement.

What are the primary factors that distinguish an independent contractor from an employee?

In Denmark, there is no general employment act covering all employees on the labour market. Therefore, there is no general rule distinguishing an independent contractor from an employee. However, several criteria will normally be used to test whether the person in question is an employee or an independent contractor. The following factors will typically indicate that a person is in an employment relationship and is, therefore, to be considered an employee:

• the person must execute agreed work;
• the employer is entitled to control and direct the person’s work;
• the work is performed in the employer’s name;
• there are fixed hours of work;
• holiday entitlement is accrued;
• the person receives an agreed salary;
• there is no economic risk associated with the work; and
• there are agreed notice periods.

Further, an employee will normally not be liable for any acts or omissions committed or not committed in the course of the employment.

On the other hand, an independent contractor normally:

• does not have an obligation to work;
• organises his or her own work and working hours;
• performs the work on his or her own premises;
• receives payment only for the ‘goods or services supplied’; and
• performs the work in his or her own name and at his or her own risk.

Is there any legislation governing temporary staffing through recruitment agencies?

Temporary staffing is governed by the Danish Temporary Agency Workers Act, which is based on Directive 2008/104/EC. The Act applies to workers employed by a temp agency who are assigned to user undertakings to work temporarily under the user undertakings’ supervision and direction.

The temp agency must ensure that temporary workers’ basic working and employment conditions, such as pay, working hours and holiday, are at least the same as those that would apply had the temporary workers been recruited directly by the user undertaking to perform the same job. According to case law, a comparison of the working conditions must be made for each working condition.

The user undertaking must inform the temporary workers of any vacant positions in the user undertaking to give them the same opportunity as other workers in that undertaking to find permanent employment. Further, the user undertaking must give temporary workers the same access to collective facilities in the workplace as other employees, including the canteen and transport facilities.

A temporary worker whose rights under the Danish Temporary Agency Workers Act are violated can be awarded compensation. Further, the temp agency in question may be fined.