The Danish interpretation of the equal treatment principle in the Temporary Agency Workers Act was contrary to EU law

The Danish Labor Court's ruling of 3 November 2025.

The case before the Danish Labor Court involved a temporary worker posted by an employment agency to Skejby Hospital from October 20, 2022, to August 31, 2023. 

According to the principle of equal treatment in the Temporary Agency Workers Act, a temporary worker must have the same essential working conditions as an employee directly hired by the user company. However, this principle does not apply if the agency is covered by or has joined a collective bargaining agreement concluded by the most representative labor market parties in Denmark that applies to the entire country, thereby respecting the general protection of temporary workers, cf. Section 3(5) of the Temporary Agency Workers Act. 

In this case, the temporary worker received a lower salary than she would have if employed directly by Skejby Hospital according to the temporary agency's collective bargaining agreement, which was concluded by the most representative labor market parties in Denmark.

The temporary worker, however, believed that this was contrary to the Temporary Agency Work Directive and could therefore no longer be upheld. On December 15, 2022, in the TimePartner case (case C-311/21), the European Court of Justice ruled that if a temporary agency agreement provides significantly worse working conditions in certain areas, the temporary worker must receive compensation in the form of benefits that are equal to or greater than those of the user company's permanent employees. 

In this case, the temporary worker believed that the lower salary was not offset by other benefits compared to those of Skejby Hospital's permanent employees. Therefore, the temporary worker claimed back pay and compensation because the conditions for deviating from the principle of equal treatment were not met.

The previous interpretation of section 3(5) of the Temporary Agency Workers Act was contrary to EU law

According to the legislative history of the Temporary Agency Workers Act, temporary agencies could legally treat temporary workers differently from a user company's permanent employees if the temporary workers were covered by a collective bargaining agreement between the most representative labor market parties in Denmark. Section 3(5) of the Act states that the general protection of temporary agency workers must be respected. Previously, this phrase was not given independent significance because it was assumed that the collective bargaining agreement automatically ensured this protection. 

However, in the TimePartner case, the European Court of Justice ruled that the phrase is an independent condition. When a temporary agency deviates from the principle of equal treatment, a temporary worker must receive other compensatory benefits. Based on this ruling, the Labor Court concluded that the previous Danish interpretation of section 3(5) of the Temporary Agency Workers Act could not be upheld. The Labor Court also ruled that the Act's wording should be interpreted in accordance with the European Court of Justice's ruling in the TimePartner case.

The Labor Court awarded the temporary worker back pay because the temporary employment agency did not provide her with compensatory benefits to offset her lower salary compared to Skejby Hospital's permanent employees.

According to section 8(1) of the Temporary Agency Work Act, a temporary worker may be awarded compensation for a violation of the principle of equal treatment. In this case, however, the temporary employment agency was not ordered to pay compensation because it acted in accordance with the previous understanding of Section 3(5) of the Temporary Agency Work Act, which was based on the legislative history. Nevertheless, the Labor Court did not reject the possibility of awarding compensation in future cases where the principle of equal treatment is violated after this ruling had clarified the legal position.

Littler notes

The Danish Labor Court ruled that the previous interpretation of Section 3(5) of the Temporary Agency Work Act was incorrect. According to this interpretation, it was sufficient for the temporary agency agreement to be concluded between the most representative labor market parties in Denmark. Deviations from the principle of equal treatment are only legal if temporary workers receive compensatory benefits similar to those of the user company's permanent employees. 

This decision could significantly impact future cases involving temporary workers' pay and employment conditions. It will also be interesting to see if the ruling affects interpretations in other areas where legislation can be derogated from if the employee is covered by a collective bargaining agreement that guarantees similar rights. Several employment laws contain such provisions.