The Supreme Court established this in a new judgment concerning Section 10-12 (2) of the Working Environment Act. The provision is intended as a narrow exception to the main rule that the working hours provisions of the Working Environment Act apply, and it should therefore only be applied in exceptional cases. The employee must have genuine and considerable freedom to decide both the extent and the timing of their work. The assessment must be specific and take account of all relevant circumstances.
Tekna has long been particularly concerned that many young people and recent graduates are offered such positions even though they do not in reality have the independence required by law, and should therefore have been entitled to overtime pay.
Read more about Managerial or particularly independent position.
A high degree of flexibility is not enough
The case before the Supreme Court concerned a project manager who was largely able to decide which tasks he would carry out and how they should be performed.
Nevertheless, he had limited control over his workload and could not freely decide when the work was to be done. In practice, the conditions set by the projects placed constraints on his working hours. The Supreme Court therefore concluded that the position was not particularly independent.
The judgment illustrates an important distinction: the freedom to decide how you work is not necessarily the same as the freedom to decide how much and when you work.
What does the judgment mean for you?
There is no simple checklist. An overall assessment must be made of how the position actually works in practice.
It may be useful to ask yourself:
- Can I influence my own workload?
- Do I largely decide when the work is to be done?
- Can I prioritise or delegate tasks?
- In practice, are my working hours governed by clients, deadlines, projects or other demands?
- How much direction and control does my employer exercise?
- Do I hold a senior position of responsibility, with the authority to commit the organisation legally or financially?
- Does my salary reflect the responsibility and independence that come with the position?
In other words, it is your actual working situation, not just your job title or the wording of your employment contract, that must be assessed.
Unsure whether you have been correctly classified?
Start by raising the matter with your employer. You may wish to ask for a specific assessment of why the position is considered particularly independent in light of the new judgment. We also recommend involving your union representatives at an early stage.
For Tekna members in NHO member companies, there is also a specific provision in the Basic Agreement between Tekna and NHO. If your employer has classified you as an employee in a managerial or particularly independent position, thereby exempting you from the working hours provisions of the Working Environment Act, you may request a written explanation of the assessment. For recent graduates, such an explanation should be provided without being requested. Union representatives may also ask the employer to explain how these exemptions are applied to Tekna members.
If it turns out that the position does not meet the requirements, it may be relevant to look into whether you have a financial claim for overtime pay. In that case, documentation is important. Keep records such as timesheets, calendar entries and any other documentation showing when and how much you have worked. It must also be considered whether the overtime was required, expected or accepted by the employer.
As a general rule, salary claims become time-barred three years after the date on which the salary should have been paid. If you believe you are entitled to overtime pay, you should therefore send your employer a formal written demand as soon as possible, setting out what the claim concerns, the period it covers and, as far as possible, the amount you are claiming. A formal demand makes the claim clear and documented, but does not normally in itself interrupt the limitation period. The limitation period is interrupted if, for example, the employer acknowledges the claim or you take legal action, such as bringing the case before the Conciliation Board.
Consider what reclassification will mean for you in the future
Reclassification is not just about potential overtime pay.
If you become subject to the ordinary working hours provisions, your working day may become more regulated. Your employer may, for example, require you to record your working hours and follow set working hours arrangements. For some, this may mean less flexibility than before.
Questions may also arise about your employment contract and how your salary and any overtime pay should be structured in future.
You should therefore look at the whole picture before taking things further: your right to overtime pay, flexibility, working hours, employment contract and pay arrangements.
Tekna’s advice
If you are in doubt, start by looking at what your working day actually involves, and raise the matter with your employer and your union representative. If you believe you may have been wrongly classified over a period of time, you should also make sure you have documentation of your working hours.
The Supreme Court’s judgment does not mean that all particularly independent positions have been wrongly classified. But it does give good reason to look beyond the job title and ask: how independent is the position really?
