It is a criminal offence to employ a foreign national who does not have the required work permit. However, the term ‘employment’ is not defined in the Aliens Act, so the question is whether there is a ‘lower limit’ as to what constitutes employment, and whether there is room for favours for friends? The Supreme Court recently addressed this question and interpreted the concept of ‘employment’ very broadly.

The case concerned a bicycle dealer. One of his friends, who was a rejected asylum seeker and did not have a Danish work permit, had visited him at his bicycle shop. During the friend’s visit, the shop received a delivery of bicycles and the bicycle dealer said he would be happy if the friend could help him and the other employees carry the bicycles from the truck into the shop. The friend did not receive pay for his help.

While carrying the bikes into the shop, the police arrived and discovered that the friend did not have a work permit. The bicycle dealer was subsequently charged with violation of the Aliens Act, and during the criminal proceedings the district court had to decide whether the friend’s help constituted ‘employment’ under the Aliens Act, or whether it was just a favour for a friend.

The district court found for the bicycle dealer on the grounds that a small, unpaid favour for a friend could not be covered by the concept of ‘employment’ in the Aliens Act, which naturally had to be understood as an employment relationship.

The Prosecution Service appealed the case to the Eastern High Court which, unlike the district court, found that the bicycle dealer had violated the Aliens Act and fined him DKK 25,000.

The case was subsequently brought before the Supreme Court, which agreed with the High Court that the bicycle dealer had violated the Aliens Act.

In its judgment, the Supreme Court established that since the requirement of a work permit is based on Danish business and employee interests, the concept of ‘employment’ must be interpreted broadly with the consequence that any type of paid or unpaid work for a business must be regarded as employment within the meaning of the Act. In this context, it is irrelevant if the parties have entered into an employment contract or if the work is permanent, temporary or merely a one-off event.

The Supreme Court also noted that it is only in very special situations that a foreign national’s performance of a task for a business will not be considered employment. For example, this could be the case where a foreign national, on their own initiative and without any agreement or understanding with the business, randomly and spontaneously performs a short-term task for the business without receiving pay.

However, the Supreme Court reduced the fine from DKK 25,000 to DKK 10,000. In this connection, the Supreme Court stressed that the starting point was a fine of DKK 50,000 per month or part of a month, but that even though the illegal employment of the friend was intentional and had an intended financial benefit, it was a very short-term, one-off offence. The financial benefit for the bicycle dealer of receiving help from his friend also had to be assumed to have been very insignificant.

The Supreme Court’s judgment emphasises that the concept of ‘employment’ within the meaning of the Aliens Act must be understood very broadly. It includes, with very few exceptions, any form of paid or unpaid performance of tasks for a business, regardless of whether it is a one-off event. However, it also establishes that the starting point of DKK 50,000 per month or part of a month for fines in cases where there are aggravating circumstances in the form of intent and intended financial gain can be derogated from and reduced in the event of short-term, one-off offences.

*Norrbom Vinding