New ruling from the Supreme Court regarding a particularly independent position

When can an employee be exempted from large parts of the rules regarding working hours and the law’s requirements regarding overtime pay? The Supreme Court makes it clear that flexibility in working life is not enough. What is crucial is whether the employee has great freedom to decide both the workload and when the work is performed.

Background to the case

The case concerned a project manager at a construction company who claimed overtime payment after bankruptcy. The employment agreement stipulated that normal overtime was included in the salary, and he was not paid overtime compensation. After the company went bankrupt, the project manager filed a claim for compensation for the lack of overtime payment against the company’s former chairman of the board and day-to-day manager personally.

The Supreme Court's assessment

The Supreme Court specifies that the exception for a «particularly independent» position is narrow, and that it applies to employees with a clear and obvious independence. Whether the position can be exempted must be assessed. specifically on the basis of all the framework conditions that apply to the position. The fact that the assessment is specific means that the employer must assess each employee individually.

Key moments for determining whether a position is particularly independent are whether the position involves the employee deciding for themselves what to do and what to delegate, how the work is to be done, and when it is to be done. Fares and requirements from clients and contractors must also be taken into account. What matters is how these frameworks actually limit the employee’s freedom. The Supreme Court states in its judgment that a position is not particularly independent simply because the employer chooses not to control working hours, if other factors in practice limit the employee’s freedom.

In the specific assessment, the Supreme Court pointed out that the project manager had great freedom to manage the work, but limited control over his own workload and when the work had to be carried out. He also had to request time off to rest. The Supreme Court therefore concluded that the position was not particularly independent, and overturned the magistrate’s court’s judgment.

Our practical advice for employers

The judgment provides employers with good reason to review the use of particularly independent positions. We recommend that employers who use the exception review the job categories in their operations to ensure proper classification based on the actual content of the position.

Look at the employee's workday. Can the employee actually influence the workload, prioritize tasks, and decide when the work is performed?
Map out the constraints: Consider how customer requirements, project deadlines, and internal expectations impact freedom.
Document the assessment: Describe why the position is considered particularly independent, and verify that the employment agreement and practices comply with the assessment.
Follow up on incorrect classification: Consider the need to change the working hours schedule and handle any claims for overtime compensation.

Are you unsure whether your business is using the exception correctly, or do you have questions about overtime pay? Contact our employment law team for assistance with assessing positions, employment contracts, and working hours arrangements.