Exam supervisors clash with University of Copenhagen in court

Were exam supervisors at the University of Copenhagen (UCPH) university employees, or were they merely temporary workers without employee rights?

This question has been subject to legal review in a lawsuit where 75 former exam supervisors – also known as exam invigilators – have taken UCPH to court after their October 2022 dismissal.

They argue that they should be seen as employees and entitled to the same conditions as other staff members, including employment contracts and periods of notice.

UCPH rejects their claim, arguing that the exam supervisors determined their own working hours, and therefore cannot be considered employees in the traditional sense.

The Copenhagen District Court was — over the course of two days,  10 and 11 March — the setting for a case that is not only about financial compensation but also about the limits of employment relationships in modern working life.

Several of the former exam supervisors, all of whom are pensioners, attended the hearings from the audience seats over the two days of the hearing.

A few of the former supervisors have testified in the case, as have representatives from UCPH and government.

Vilhelm Kent is one of the former exam supervisors who has testified in the case. He is the chair of the negotiation committee that the supervisors set up among themselves when discussions with UCPH reached a deadlock.

After two days in the Copenhagen District Court, he remains hopeful, yet the experience has left him with a peculiar feeling.

»This is incredibly ambivalent. Two and a half years of fairly hard work have led to this, and now it is all over in just two days. It is a strange feeling,« he says to the University Post.

Wants millions in compensation

The case revolves around a letter that the former exam supervisors received from UCPH in March 2022, announcing significant deteriorations in their terms of employment. Among other things, they would no longer receive additional pay for overtime or weekend shifts.

The supervisors protested against the changes, and the dispute between the two sides escalated.

The exam supervisors were ultimately collectively dismissed in October 2022.

Now they have taken legal action against UCPH, citing breach of contract and loss of earnings. They are also demanding compensation for the lack of employment contracts during their time at the university.

READ ALSO: Dismissed exam supervisors hit University of Copenhagen with lawsuit

The former exam supervisors have been represented in court by lawyer Knud Foldschack.

After the two court hearings, Simon Castellani, the associate lawyer handling the case for the supervisors, was optimistic on behalf of his clients.

»This is a case where the University of Copenhagen has acted in a completely unacceptable manner. They have not had control over anything at all,« he tells University Post.

The former exam supervisors are demanding nearly DKK 5 million in compensation. According to Simon Castellani, UCPH has already paid out nearly DKK 1 million. In the supervisors’ view, this only reinforces their claim that the university was aware of the situation.

Dispute over employment status

The University of Copenhagen has been represented in court by lawyer Lene Damkjær Christensen. Apart from paying DKK 10,000 in compensation to two former supervisors who had particular responsibilities, she argues that UCPH should be acquitted.

Her argument hinges on the fact that the former exam supervisors’ association with the university cannot be defined as traditional employment. In her view they were therefore not entitled to the usual employment terms and rights.

During their employment, the supervisors got a monthly schedule where they could indicate which dates they were unavailable for work.

Because they determined their own working hours, Lene Damkjær Christensen argues that they were not entitled to formal employment contracts.

The former exam supervisors, on the other hand, have argued in court that they were regular employees. They had staff ID cards, employee parking, access to renting UCPH holiday homes, and were even awarded bonuses for long service anniversaries.

All of this, in their view, proves that they were employed on the same terms as other UCPH staff.

Lene Damkjær Christensen acknowledged during the trial that there had been administrative errors, particularly concerning the payment of long-service bonuses. She maintained however, that this did not change the fact that the former exam supervisors were only loosely affiliated with the university.

Threats of work stoppage

The exam supervisors and UCPH had a temporary truce during the conflict, ensuring that their existing working and pay conditions would remain in place. This was done partly to guarantee that exams could proceed as planned, preventing students from being affected by the ongoing dispute.

It therefore came as a shock to the supervisors when, in October 2022, they were informed that they had all been dismissed.

According to Lene Damkjær Christensen, this decision was not as unexpected as the exam supervisors claimed, however.

During the course of events, the negotiation committee had allegedly threatened to stop work if the existing conditions were not upheld.

Since conducting exams is a core function of the university, it was entirely reasonable to dismiss the supervisors when exams were put at risk, she argued.

But according to Vilhelm Kent, the negotiation committee never threatened to stop work.

»The negotiation committee had no authority to declare a work stoppage on behalf of the supervisors. That was not something we could do. What we did say was that there was a risk that people might refuse to take shifts if the existing conditions were not maintained,« says Vilhelm Kent.

When the exam supervisors were dismissed, UCPH made an agreement with the Moment temp agency, which was given responsibility for exam supervision.

Because of this, the former supervisors argue that a business transfer has taken place, as UCPH has taken their work and transferred it to the Moment company. During the trial, Simon Castellani referred to the Danish business transfer legislation, which states that employees should, as far as possible, follow their jobs to the new employer and that such a transfer cannot simply lead to dismissals.

Lene Damkjær Christensen argued, however, that this does not constitute a business transfer in the legal sense, as Moment has not taken over any assets or employees.

Dismissed white-collar employees

Another point of contention is whether the dismissed exam supervisors can be classified as white-collar salaried [or funktionær] office employees.

If they can, they may be entitled to greater compensation. According to Simon Castellani, they would also be entitled to compensation due to the lack of notice given before their collective dismissal.

Under Danish legislation an individual must primarily perform office work to be classified as a white-collar funktionær employee.

During the trial, the UCPH lawyer argued that the former supervisors carried out minimal office work. In her view, they do not therefore meet the criteria for white-collar status.

At the same time, Lene Damkjær Christensen concluded in court that the former supervisors had, in fact, been overcompensated during their employment. She argued that UCPH never had the legal basis to pay supplements for weekend and evening shifts. If employment contracts had been in place, the supervisors would have been in a worse position than they actually were. She stated therefore that any compensation for the lack of employment contracts should be capped at DKK 10,000 per person, while the supervisors were demanding DKK 25,000 per person.

Ruling expected in May

The two-day trial did not conclude with a verdict. The ruling will be announced on 6 May.

This is due to the large number of plaintiffs, which makes calculating potential compensation for each former supervisor a complex process.

Although the supervisors are seeking nearly DKK 5 million in compensation on top of what has already been paid, they do not necessarily expect to receive the full amount.

»We are well aware that we probably won’t get the full amount. We never expected that. But we decided long ago that we would be willing to accept a reduction of 25 per cent from the total claim. If it ends up being lower than that, we will consider our next steps,« says Vilhelm Kent.

The University Post caught up with Lene Damkjær Christensen for a brief comment following the two days in court:

»I believe the trial has been conducted in an orderly manner. Both parties have presented their arguments, and now we await the judge’s decision, after which we will assess the outcome when it arrives,« she said.