Our Nordic employment team takes a look at the employer's right to manage work in Sweden, Denmark and Finland. Issues such as assigning/changing work tasks, place of work, supervision, working hours and more are discussed.
A main principle of Swedish employment law is the employer's right to manage work, i.e. the discretionary right of the employer to assign work tasks to the employee and instruct the employee on how, when and where to perform these work tasks.
The employer's right to manage work may allow the employer to change the employee's work tasks or assign the employee a new position. However, any change of the employee's work tasks must be within the scope of the employment. Whether the change of position is within the scope of the employment depends on what is stipulated with regard to the employee's work tasks in the individual employment contract and CBA (collective bargaining agreement), if applicable.
The question as to when and where the employee should carry out his/her duties also fall within the scope of the employer's right to manage work since the employer determines the place of work. Primarily, the employee's work place follows from the provisions of the individual employment contract, but in cases where the employment contract does not stipulate the place of work, then the work would not normally be considered tied to a particular location. This means that the employer may change the work location from time to time, as long as the new workplace is within the same or nearby city/town or a reasonable commuting distance.
With regards to working hours, the employer and employee usually agree on the regular weekly working time in the employment contract. Within the right to manage work, the employer schedules the employee's daily working time and assigns overtime work to the employee. The Working Hours Act stipulates that the normal weekly working time shall amount to at most 40 hours per week, and also sets forth to what extent the employee is allowed to work overtime. The provisions on ordinary working hours and overtime contained in the Working Hours Act are mandatory and an employer may, thus, not request that the employee works hours exceeding the limits set forth in the said act.
When exercising their right to manage work, the employer must consider that there may be a negotiating/consultation obligation with the relevant trade unions in relation to actions/decisions envisaged by the employer - we will cover this topic in an upcoming article on "The employer's obligation to negotiate".
An employment relationship exists if the four constituent elements, as defined in the Finnish Employment Contracts Act, are fulfilled. The employer's direction and supervision is one, and ultimately considered as the most important element when evaluating whether an employment relationship exists. The framework of the employer's right to direct and supervise work is further defined, for example, by Collective Agreements (where applicable), employment contracts and established practices in the workplace.
As in Sweden, the right to direct and supervise work allows the employer, within its competence, to determine unilaterally how, when and where the work is performed. By virtue of this element, the employer is entitled to:
- Give orders concerning employees' work performance (orders may also concern more or less minor work related matters, such as smoking in the workplace);
- give orders concerning the hours the work is to be performed;
- supervise the way the work is carried out; and
- supervise the results and the quality of work.
The employer must operate within the above-described framework set when directing and supervising work. When carefully exercised, the right to direct and supervise work is rather wide. However, it is easy to unintentionally narrow it down, for example, by implementing detailed work task descriptions in employment contracts or by letting unwanted practices to establish in the workplace.
As in all actions, the prohibition of discrimination and the requirement for equal treatment are principles employers shall bear in mind when directing and supervising work. Employees must be treated equally, unless case-by-case analyzed justified reason exists to deviate from this, taking into account the employee's duties and status. Deviating from equal treatment - when justified - is often a prerequisite for well-functioning direction, supervision and HR-practices in the workplace.
The employers' right to manage work is also a main principle in Danish employment law. The principle was determined in the first main agreement between the two main organizations on the employers' and employees' side respectively (called "DA" and "LO" in short). As the principle is fundamental in any employment relationship, it is applicable even though the employer and/or the employee are not covered by the main agreement.
As in Sweden the employer's right to manage work allows the employer to have authority over the employees. The employer is in general entitled to:
- Employ the needed workforce
- Determine where and how to carry out the work
- Determine the daily working hours
- Implement requirements on how to behave at the work place
- Implement policies regarding the employees' usage of e-mail, internet, mobile etc.
- Implement any needed control measures
- Dismiss employees
All terms of course within the Danish legislation and the CBA in force (if any).
As a main rule, there is a distinction between whether an employer's change to the employment terms is deemed significant or not. As a main rule, an employer is entitled to change e.g. the work place, the working hours, the tasks etc. as long as the change(s) fall within the scope of the contract. If a change is within the scope of the employers' right to manage work, the employee has to accept the change.
If a change, however, is considered as a significant change, thus outside the scope of the employers' right to manage work, this will imply that that the employer dismiss the employee and simultaneous offers a new employment contract on the new terms. The change can only be implemented with the employee's individual notice and is reliant on the employee's accept. If not, the employee can consider himself as dismissed with his individual notice and with the risks involved with this.
The scope of the employers' right to manage work is also affected by collective bargaining agreements (where applicable) and legislation. As an example the prohibition of discrimination and the requirement for equal treatment are principles the employer must meet when managing work. Furthermore the employee must meet requirements such as fair dismissal cf. the Danish Salaried Employees Act and work environment, cf. the Danish Work Environment Act.