The decisive factor is not merely the degree of autonomy the employee has in carrying out their duties. The employee must also have genuine freedom to determine the scope of the work and when it is to be carried out.

The ruling means that employers should review which roles are classified as particularly independent and check that the classification corresponds to the actual day-to-day work.

Why is this classification so important?

Under Section 10-12(2) of the Working Environment Act, employees in particularly independent positions are exempt from most of the Act’s provisions on working hours. This includes, amongst other things, the rules on the length of working hours and overtime pay.

The exemption is therefore important in both practical and financial terms. If an employee is incorrectly classified as holding a particularly independent position, the employer may face claims for back pay for overtime. Questions may also arise as to whether the working time arrangements have complied with the protective provisions of the Working Environment Act.

In any event, the employer must ensure that the working time arrangements are reasonable. This also applies to employees who actually hold a particularly independent position.

The case before the Supreme Court

The case concerned a project manager at a construction company. The project manager was responsible for, amongst other things, progress, finances, subcontractors, orders, liaison with the client and handling changes. He had considerable freedom to organise his work tasks and could simultaneously be responsible for several construction projects.

The employment contract stipulated a working week of 40 hours. It also stated that ‘normal overtime’ was included in the salary, and no separate overtime allowance was paid.

After the company went into liquidation, the project manager made a claim regarding unpaid overtime. Both the District Court and the Court of Appeal concluded that the position was particularly independent. The Supreme Court disagreed and quashed the Court of Appeal’s judgment.

The workload is part of the assessment

The project manager had considerable freedom regarding how the projects were to be carried out. However, he had limited control over his own workload and, in reality, could not refuse the tasks assigned to him.

This was a key consideration for the Supreme Court. The freedom to prioritise between tasks is not necessarily sufficient if the employee does not at the same time have genuine influence over how many tasks they are given, and thus how much work needs to be carried out.

The fact that the project manager had to ask his employer for time off in lieu also suggested that he did not have the necessary control over his own working hours.

External requirements and deadlines must also be taken into account

An important clarification in the judgement is that the assessment cannot be limited to the control exercised by the employer itself.

Client requirements, regulatory requirements, project deadlines, milestones and other external framework conditions may, in practice, limit the employee’s ability to manage their own working hours. If such factors decisively determine the workload or when the work must be carried out, the position may fall outside the scope of the exemption.

In other words, a post does not become particularly independent simply because the employer fails to monitor or control working hours. The decisive factor is the employee’s actual control over their own working hours, regardless of who or what limits this control.

Project managers must be assessed on a case-by-case basis

The ruling does not mean that project managers generally fall outside the scope of the exemption. Project manager roles can vary greatly.

A project manager who has genuine authority to decide which tasks are to be carried out, which tasks may be delegated, which resources are to be used, and how much and when they are to work, may, depending on the circumstances, hold a particularly independent position.

If, on the other hand, the workload is largely determined by assigned projects, client requirements, delivery deadlines and factors beyond the employee’s control, this will weigh in the opposite direction. Job title and job description are not decisive if the actual day-to-day work suggests otherwise.

What should employers do now?

Employers who make use of the exemption for particularly independent positions should review the classification. The review should, in particular, be linked to the key points of the judgement:

1. Workload
Can the employee genuinely influence how many and which tasks they are assigned?

2. The extent of working hours
Can the employee decide for themselves how much time to spend on work, or is the workload in reality determined by the employer’s or the client’s requirements?

3. The timing of the work
Can the employee choose when to carry out the work, or is this determined by meetings, deliveries, project deadlines or other fixed frameworks?

4. Prioritisation and delegation
Can the employee choose to omit, postpone or delegate tasks, or does their freedom primarily consist of prioritising between tasks that must be carried out in any case?

5. The actual working day
Do the employment contract and job description correspond to how the work is actually organised and carried out?

6. Recording and monitoring of working hours
Does the organisation have sufficient oversight to be able to document and manage working hours should the classification prove to be incorrect?

If the review shows that the employee has no real control over either the workload or the timing of their work, consideration should be given to whether the post can still be classified as particularly independent.

The practical implications of the judgement

The judgement makes it clear that there is an important distinction between autonomy in the performance of the work and independence with regard to the actual working hours.

For employers, it is therefore not sufficient to point out that an employee has considerable professional freedom, extensive project responsibility or flexible working hours. The employer must be able to demonstrate that the employee also has genuine freedom to influence how much and when they work.

An incorrect classification may have financial and employment law consequences. The classification should therefore be assessed on a case-by-case basis for each individual post and updated if the duties, responsibilities or framework conditions change.

Brækhus assists employers with the assessment of particularly independent positions, the review of employment contracts and working time arrangements, as well as the handling of issues relating to overtime pay.

Next steps

We regularly assist employers in assessing whether employees are correctly classified as holding particularly independent positions, including in light of the recent Supreme Court judgment. We also advise on employment contracts, working time arrangements and overtime pay.

Contact us today for an informal chat about how we can assist.