Agency worker or not – there is no resort

Two temporary agency workers were employed as IT supporters in a user company. We have previously written about the case here.

A third temporary agency worker was employed as an analyst in another user company, where he was extended four times over approximately three and a half years. It was not clear why the agency worker had been assigned as such and later extended.

The question was whether the three agency workers were ‘temporarily’ working at the companies or whether the assignments fell outside the agency worker rules so that they were protected like other employees.

No good explanation for using temporary agency workers

The agency worker rules only apply when an agency worker is temporarily assigned to a user company. The High Court concluded this was the case for the two IT supporters but not the analyst. The analyst was, therefore, entitled to salary during the notice period, sick pay, and compensation.

All three agency workers were extended multiple times over a longer period. However, this in itself was not enough to conclude that they were not agency workers. Instead, it was decisive that one company could prove that the closure of a department objectively justified the assignment and that the extensions were due to delays that the company was not in control of. This was in contrast to the other company, which could not prove any objective reasons for either assignment or extensions.

IUNO’s opinion

The case shows that only temporary assignments of agency workers are covered by the special agency worker rules. It is not only the duration or the number of extensions that determine whether an assignment is temporary. It is also necessary that both the assignment and any extensions are objectively justified and do not attempt to circumvent the permanent employment of the agency worker. This issue is particularly relevant with the increasing use of Employer of Records, so-called EoRs, in Denmark, which we have previously written about here.

IUNO recommends that companies continuously document what makes it necessary to use agency workers and possibly extend them. Otherwise, companies risk that agency workers fall outside the agency worker rules and are instead protected like other employees.

[The Eastern High Court’s ruling in the cases BS-45303/2021 and BS-8528/2023 of 24 April 2024]