The Norwegian Anti-Discrimination Tribunal has awarded its first compensation for gender-based discrimination in the workplace

| Insight

Since 1 January 2018, the Norwegian Anti-Discrimination Tribunal has had the power to award compensation and damages for non-economic loss for discrimination in the workplace. The Tribunal has previously awarded damages for non-economic loss in some cases, but it has now awarded a woman NOK 125,000 in its first decision to award both compensation and damages for non-economic loss after an employer withdrew an offer of employment after learning that the woman was pregnant.

  1. Brief background to the Anti-Discrimination Tribunal’s power to award compensation and damages for non-economic loss

The provision authorising the Anti-Discrimination Tribunal to award compensation and damages for non-economic loss was incorporated into Section 12 of the Act with effect from 1 January 2018. Previously, persons who believed themselves to be victims of discrimination had to bring legal action before the courts for compensation and/or damages for non-economic loss, and consequently, the costs of ordinary court proceedings meant that very few such cases were brought before the courts. The preparatory works to the 2018 Act state that the purpose of granting the Anti-Discrimination Tribunal the power to award compensation and damages for non-economic loss was precisely to ensure the possibility of imposing reasonable and efficient sanctions to safeguard the interests that the anti-discrimination legislation is put in place to protect.

  1. The facts of the case before the Anti-Discrimination Tribunal

The case before the Anti-Discrimination Tribunal concerned the alleged discrimination of a woman as a consequence of her pregnancy and forthcoming maternity leave. The complainant had applied for and been offered an advertised position as a cosmetic nurse at a clinic. The complainant accepted the position, and a meeting to sign the employment contract was scheduled for 6 January 2020. When she arrived at the workplace, the complainant started training. The same day, she informed the general manager of the clinic of her pregnancy. The contract was not signed on this date as agreed, however, because the chair of the board was not present.

That evening, the complainant received an email from the general manager in which she was informed that a meeting had taken place regarding the complainant’s information that she was pregnant and would begin her maternity leave in three months. The email from the general manager continued:

«We do not have the resources to train you here for three months before you go on leave, and it will be better for both parties to pick up the thread after your leave.»

The complainant argued before the Anti-Discrimination Tribunal that she had been discriminated against because of her pregnancy and upcoming maternity leave. The employer argued that although the complainant had applied in response to a job advertisement, she was not to be employed by the clinic, but to be affiliated to the clinic as an independent treatment provider. The employer also argued that the reason why the employment contract was not signed was that the conditions for the contract were breached when A revealed on her first day that she was pregnant and would take maternity leave in three months.

  1. The Anti-Discrimination Tribunal’s assessment

3.1 The question of whether discrimination on the basis of pregnancy and leave in connection with childbirth had taken place

The Anti-Discrimination Tribunal referred to the Equality and Anti-Discrimination Act Section 6, which prohibits discrimination on the basis of pregnancy and leave in connection with childbirth, and it stated that, in the Tribunal’s opinion, there was no doubt that the complainant had received treatment that was worse than the treatment that would have been afforded to other persons in a corresponding situation in that she was not permitted to take up her position at the clinic.

The employer had argued that the complainant would not be a permanent employee, but an independent treatment provider in a temporary replacement position. The Tribunal also referred to the fact that the prohibition against differential treatment on the basis of pregnancy and leave in connection with childbirth is absolute in connection with recruitment and dismissal, cf. the Equality and Anti-Discrimination Act Section 10 third paragraph, and that this protection also applies in connection with recruitment to a temporary position. The complainant will therefore be protected against discrimination regardless of whether she was taking up a temporary or a permanent position at the clinic.

The Tribunal also referred to the fact that pregnant job applicants have no obligation to inform the employer of their pregnancy and that the employer may not collect information about an applicant’s pregnancy, cf. the Equality and Anti-Discrimination Act Section 30 first paragraph letter a).

Based on the above, the Tribunal concluded that the employer had discriminated against the complainant on the basis of pregnancy and leave in connection with childbirth, and proceeded to consider the complainant’s claim for compensation and damages for non-economic loss.

3.2 The question of damages for non-economic loss

The Tribunal made reference to the Equality and Anti-Discrimination Act Section 38, which states that damages for non-economic loss shall be set to an amount that is reasonable in view of the nature and scope of the harm, the relationship between the parties and other circumstances. The Tribunal also stated that the assessment shall take into account culpability, the relative strength of the parties and the financial situation of the party guilty of discrimination.

In the preparatory works, the Ministry assumed that the amount of damages for non-economic loss will normally be in the range between 20,000 and 80,000, with the possibility to impose higher damages in particularly serious cases, cf. Proposition No 80 to the Storting (Bill) (2016–2017) page 94.

In the present case, the Tribunal set the damages to NOK 50,000. The Tribunal’s previous practice was taken into account in the assessment. Other factors included the fact that the legislators have put in place particularly strong protection for the prohibition against discrimination on the basis of pregnancy and leave in connection with childbirth, and that the employer was to blame for the discrimination in the present case. It was also emphasised that the complainant was placed under considerable psychological stress during the final months of her pregnancy, and that the employer was a professional party.

3.3 The question of compensation

As regards the question of compensation, the Tribunal referred to the fact that it may make an administrative decision concerning compensation in cases where the respondent has no objections to the claim for compensation or where the Tribunal finds reason to set the respondent’s objections aside as manifestly untenable. In this case, the employer had disclaimed all responsibility on the grounds that the complainant was unable to fulfil the conditions of the agreement as a result of her pregnancy, and that the complainant had thereby put the employer in a difficult position. The Tribunal concluded that these objections must be deemed to be manifestly untenable, and the complainant was awarded compensation.

In connection with the stipulation of compensation, the Tribunal made an assessment of whether its competence to award compensation was limited in terms of amount. The reason for this assessment was a passage in the preparatory works to the Equality and Anti-Discrimination Ombud Act, in which it is stated that:

«The Ministry assumes that, as a rule, the compensation awarded in such cases will concern modest amounts, and that the Tribunal’s decision-making power will be limited to amounts of less than NOK 10,000.»

Seen in isolation, this statement can be interpreted to mean that the Tribunal is not competent to award compensation amounts in excess of NOK 10,000. However, the Tribunal rejected this interpretation of the passage in question and made reference to a consultation paper of 2 July 2020, section 7.4, where the Ministry of Culture stated the following:

«It is specified that the Ministry’s intention was to state what one assumes will be the normal level of compensation and damages for non-economic loss, and that it should not be interpreted as a formal limitation on the powers of the Tribunal.»

The Tribunal concluded that the complainant had suffered a loss of income for three months as a result of the discrimination against her. The duty to mitigate loss was not relevant to the case, as she could not be expected to find other work during the final three months of her pregnancy. Based on the above, the compensation is set to NOK 75,000.

  1. Summary

The Tribunal’s decision provides an interesting clarification, both regarding the fact that the Tribunal finds that its competence to award compensation is not limited to a maximum amount and regarding the amount that the Tribunal considers appropriate compensation in this type of clear cases of discrimination.

As a matter of form, we point out that the deadline for appealing the Tribunal’s decision to the courts is three months, which means that whether the Tribunal’s decision stands will only be finally clarified after this deadline has expired. In any case, the decision is a clear indication that the purpose of granting the Anti-Discrimination Tribunal the power to award compensation and damages for non-economic loss, namely to ensure the possibility of imposing reasonable and efficient sanctions, seems to be very much fulfilled.