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TRAVEL RISK MANAGEMENT 2015
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Geographical restrictions
The jurisdictional scope of the Danish Working Environment Act is limited to work being performed in Denmark, meaning that the Act does not apply to work carried out abroad even if the employee is a Danish citizen working for a Danish employer.
When an employer assigns an employee to work in another country for a ixed period of time (and the employee is not employed locally), the parties will often agree that Danish law will continue to apply. However, since the Danish Working Environment Act only applies to work carried out in Denmark, the Danish employer will have no direct obligations under the Act with regard to the work carried out by the employee abroad.
In order to avoid any misunderstandings, however, it is recommended that it is speciied in the international assignment agreement that the Danish Working Environment Act does not apply with regard to work performed abroad and the extent to which the Danish rules on working hours and rest periods apply.
The Danish Liability for Damages Act
In Denmark, employers are required to take out industrial injury insurance and pay contributions to the Danish Labour Market Occupational Diseases Fund. If an employee is injured while performing work for the employer, the employee will be entitled to compensation under the Danish Industrial Injury Insurance Act if the injury qualiies as an industrial injury or an occupational disease. Such compensation is covered by either the industrial injury insurance or the Danish Labour Market Occupational Diseases Fund. The Danish Industrial Injury Insurance Act is described in more detail below.
However, the Danish Industrial Injury Insurance Act does not cover compensation, for instance, for lost earnings or for pain and sufering. Therefore, the employee may choose to claim damages under the Danish Liability for Damages Act, and the employer may be liable to pay such damages if the health and safety conditions at work were not in compliance with health and safety law.
If an employee sufers an industrial injury while on assignment abroad, there are examples in Danish case law where in some cases the employee may claim damages under the Danish Liability for Damages Act from the Danish employer. In the assessment of the Danish employer’s liability in such cases, the Danish courts have
established on a few occasions that the Danish Working Environment Act is not directly applicable outside of Denmark, but the principles which follow from the Danish Working Environment Act may be applied in order to assess whether the Danish employer is liable. The crucial factor here is whether, having regard to all of the circumstances involved, the case has the strongest ties to Denmark.
In a High Court judgment from 2010, for example, the High Court held that a travelling ield engineer who was injured while working in China was entitled to damages from his Danish employer. The employment contract had been concluded in Denmark where the parties were based, the main work address of the ield engineer was in Denmark, the work in China was carried out separately from the local employees and all necessary communication took place directly between the ield engineer and the oice in Denmark. On that basis, the High Court held that the ties to Denmark were such as to make the employer subject to the duty to act reasonably and the duty of care imposed on employers under the general rules of Danish law in connection with industrial injuries – which, among other things, build on the principles mentioned in the Danish Working Environment Act. However, the High Court also said that it was evident that the provisions of the Danish Working Environment Act were not directly applicable in China, and in the assessment of liability weight was also given to the fact that, in case of assignments abroad, employers have no or only limited inluence on the organisation of the workplace and no or only limited opportunity to supervise the work.
Therefore, in light of Danish case law, it cannot be ruled out that a Danish employee who sufers an injury at work/while on assignment abroad would be entitled to damages from the Danish employer and that, in their assessment of liability, the Danish courts would also consider the principles of the Danish Working Environment Act.
Consequently, Danish employers which assign their employees to work abroad should ensure to a certain extent that the work is performed under reasonable conditions and that the employee is not exposed to unreasonable risk and danger while working abroad.
If the employee is assigned to work in countries involving particular exposure to risk or danger, Danish employers should also ensure that the necessary measures are implemented to allow the employee to perform the work in the safest and healthiest conditions possible, including that the employee has been provided with