Temp and on-call agreements: flexible employment

Many companies, especially in retail, hospitality, healthcare and events, use temps and on-call workers to handle unpredictable staffing needs. But flexible forms of employment are legally complex. A wrongly set up employment relationship can create unexpected obligations for the employer and deprive employees of rights they are entitled to.

This guide reviews the rules for temp and on-call employment in Denmark: what is legally allowed, what the contract must contain, and what distinguishes a lawful on-call agreement from a problematic zero-hours construction.

What is an on-call worker?

An on-call worker (tilkaldevikar) is a person who does not have a fixed number of hours but whom the employer can call in as needed. It is a form of employment that gives the employer great flexibility but requires correct legal set-up.

On-call workers are typically used:

• In cafés, restaurants and the hospitality industry
• In healthcare (care homes, temp agencies)
• In retail (holiday cover, seasonal peaks)
• In the events and entertainment industry

Are zero-hours contracts lawful in Denmark?

A zero-hours contract is an agreement where the employee is not guaranteed a minimum number of hours, and the employer can call them in as needed without obligation.

In Denmark, zero-hours contracts are in principle lawful, but there are important limitations, which follow in particular from the Directive on transparent and predictable working conditions (EU 2019/1152). The directive is implemented in the Danish Employment Certificate Act, which came into force on 1 July 2023.

The rules mean, among other things, that:

• The employer must give information about the framework for the work, including any reference hours, whether the work pattern is wholly or largely unpredictable, and what notice applies for call-ins
• An employee who has been employed for more than 6 months can request a form of employment with more predictable and secure working conditions, and the employer must reply in writing

Rights for temps and on-call workers

An on-call worker who actually works regularly gradually acquires, to a large extent, the same rights as a permanent employee.

Holiday

The Holiday Act applies to everyone who works for remuneration. On-call workers accrue paid holiday or holiday pay from the first working day, and the holiday pay is 12.5% of the salary.

Illness and sickness benefit

An on-call worker can be entitled to sickness benefit when the employment condition is met (as a rule at least 240 hours of work within the last 6 completed calendar months). To be entitled to sickness benefit from the employer in the employer period (the first 30 calendar days), the employee must have been employed by the employer for the last 8 weeks before the absence and in that period have worked at least 74 hours.

Notice period

If the on-call worker has had regular and ongoing employment, a right to a notice period can arise. Even though there is no fixed weekly number of hours, an on-call worker who works regularly over time can acquire protection corresponding to a permanent employee.

Important: the courts look at the actual employment practice, not just the wording of the contract. An "on-call worker" who in reality works, for example, 30 hours a week steadily will probably be regarded as a permanent part-time employee with the rights that entails.

The employment certificate

All employees, including on-call workers covered by the act, are entitled to a written employment certificate. Under the new Employment Certificate Act, the most essential terms must be given no later than 7 calendar days after the employment has begun, and the other information no later than 1 month after. The employment certificate must, among other things, contain:

• The parties' identity and the place of work
• The content of the position and the start date
• Pay and payment terms
• Working hours, including the framework for call-ins and the notice for an unpredictable work pattern
• Notice periods
• The right to holiday and any right to training

Temp agencies: special rules

If a temp agency is used to make temps available, there is a three-party relationship: the temp agency (the employer), the company (the user undertaking) and the temp (the employee).

The Temporary Agency Work Directive (2008/104/EC), implemented in the Danish Temporary Agency Work Act, provides, among other things:

The equal treatment principle: temps as a rule have the right to the same essential pay and working conditions as comparable permanent employees in the user undertaking, that is, the same pay, working hours and holiday conditions.

Access to shared facilities: temps have the right to access to the canteen, childcare and transport arrangements on a par with permanent employees.

Information about permanent positions: the user undertaking must inform temps about vacant permanent positions in the company.

Always check the temp-agency agreement so it is clear who bears responsibility for compliance with the equal treatment principle.

What should an on-call agreement contain?

An on-call agreement must meet the requirements of the Employment Certificate Act and should contain:

Basic information

• The parties' names, addresses and CVR number
• The employment date and the form of employment (on-call worker or on-demand)
• The place of work, or the possible places of work

The scope of the work

• State explicitly whether there is a guaranteed minimum number of hours, or that there is no guarantee of a minimum
• The expected notice for a call-in (for example at least 4 or 24 hours)
• The right to refuse a call-in, and what the consequence is if so

Pay and payment

• Hourly pay or another model of remuneration
• The time and method of payment
• Any supplements for overtime, weekends and public holidays under any collective agreement
• Holiday pay (12.5% of the salary)

Notice and termination

• The notice period for both parties, which can differ from the Salaried Employees Act's notice periods for short-term relationships
• The procedure for coming off the call-in list

Confidentiality and conduct

Any confidentiality clauses and conduct requirements that apply during the performance of the work.

Risks of wrongly set up flexible employment

Risk 1: involuntary permanent employment

A temp who works steadily and regularly can have a claim to be recognised as a part-time or full-time employee with the associated rights. Protection: avoid letting on-call workers work fixed schedules over longer periods, and consider actual part-time employment if the need is stable.

Risk 2: a deficient employment certificate

If the employment certificate lacks mandatory information, the company can be ordered to pay compensation to the employee, even in a short-term relationship. Protection: use a template that covers the legal requirements.

Risk 3: a claim based on equal treatment

Temps sent out by a temp agency can have claims if they are not paid on a par with comparable permanent employees. Protection: make sure the temp-agency agreement is explicit about the equal treatment obligation and who is liable.

On-call workers and collective agreements

Many sectors have collective agreements that govern temp conditions specifically. The agreements can contain minimum notice for call-ins, minimum pay and supplements, special rules on a minimum number of hours, and limits on the use of on-call workers. Always check the relevant sector agreement before you draw up your on-call agreement.

Frequently asked questions

Can we call a permanent employee an on-call worker to avoid the Salaried Employees Act's rules?

No, the label is not decisive. It is the actual employment that determines the rights. An "on-call worker" who in reality works regularly can be a salaried employee with a claim to the Salaried Employees Act's rights.

Is an on-call worker entitled to pay even if we do not call them in?

It depends on the contract. If a guaranteed minimum number of hours has been agreed and is not met, the employee can have a pay claim. Without a minimum number of hours, the answer is as a rule no, but repeated failures can, depending on the circumstances, give rise to a claim.

What is a reasonable notice for a call-in?

It depends on the sector and any collective agreement. In many sectors, 4 to 24 hours' notice is common. State a specific notice in the contract to avoid disputes.

Can on-call workers have other employment?

Yes, unless the contract expressly limits it. An on-call worker is not automatically bound exclusively to one company, and the directive also limits general exclusivity clauses.

Is there a difference between an on-call worker and a freelancer?

Yes. An on-call worker is an employment relationship with employee rights (holiday, sickness benefit and so on). A freelancer is as a rule a self-employed person. Ensure correct classification, as the actual reality determines the relationship.

Conclusion

Flexible forms of employment require legal precision. A correct on-call agreement that meets the Employment Certificate Act and any collective agreement protects both parties and minimises the risk of costly employment-law disputes. If in doubt, you should seek advice before setting up the relationship.

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The content of this article is for guidance only and does not constitute legal advice. Consult an employment-law adviser for advice on your specific situation.