Year in Review: Employment Law

| Insight

There have been several interesting developments and news on the employment law arena in 2019. Let us look at some of the most important.

Amendments to the rules regarding permanent employment

With effect from 1 January 2019 section 14-9 of the Working Environment Act now defines «permanent employment» as a continuous and indefinite employment, where the rules on termination of employment apply and where the employee has predictability for the scope of work and the income. Accordingly, if the employee perform work periodically, the employment contract must state when the employee perform the work, or it must be possible to calculate when the employee perform the work.

New rules on layoffs of employees

Amendments to the rules on layoffs of employees came into force 1 January 2019, stating that the employer period is increased from 10 to 15 days and the period the employee can leave without pay is reduced from 49 weeks to 26 weeks.

New Supreme Court decisions on termination of employment

The Supreme Court concluded in March that when downsizing, the decisions ultimately depends on a total assessment of pre-set criteria. Several employees claimed that their redundancy terminations were invalid and sued their employer, Skanska. Skanska was bound by a collective agreement, which stated that when downsizing, length of service could be deviated from if there are fair grounds for doing so. The employees won the case and kept their job. The Supreme Court stated that companies can emphasize criteria such as competence and skill, and stated that such criteria can contribute to the survival of the business or at least strengthen the prospects. However, the principle of length of service has a particularly strong weight in companies bound by collective agreements, and in this case, there were no fair grounds for deviating from it.

In October, the Supreme Court decided on another case regarding the importance of length of service. The main question before the court was whether the selection pool the employer applied was objectively justified. After an overall assessment, the Supreme Court concluded that the number of employees and the composition of the positions included in the selection pool resulted in the relevance of length of service was substantially weakened and that the termination of the employee was invalid. The judgment also shows that the offer of another suitable position does not make up for an unreasonable selection pool or selection criteria, which is not objectively justified.

The decisions from the Supreme Court are particularly important for employers bound by a collective agreement. Employers not bound by a collective agreement, have additional leeway in the process.

Amendments to the rules concerning #metoo

A new amended will come into force 1 January 2020 in the Equality and Discrimination Act, establishing a low threshold possibility to have #metoo cases tried before the Discrimination Committee.

Changes on the rules concerning whistleblowing

The Norwegian Parliament have approved changes to chapter 2A of the Working Environment Act that contribute to clarification and precise formulation and make the provisions more accessible and understandable to the users of the law, which will come into force 1 January 2020. The new regulations to chapter 2A of the law also include some material changes that includes a strengthened protection for the whistleblower.

One of the changes in force 1 January 2020 is an expansion to the statutory objective to include the facilitation of good free speech climate in the undertaking.

Another important change to the rules concerning whistleblowing is an expansion of the personnel sphere, to include persons who are not employees pursuant to section 1-6 of the Working Environment Act.

As of 1 January 2020, the law defines the term «censurable conditions» and includes a list of examples of «censurable conditions».

The requirement of «warrantable» as of 1 January 2020 no longer applies. The law now determines that an employee can always notify internally to supervisory authorities and other public authorities, with the presumption that the employee is in sincere good faith regarding the content.

The changes also included an obligation on the employer to act and «within reasonable time» ensure an adequately examination of the notification. However, the law does not lay down any requirements as to what the employer specifically must do. This is within the employer`s discretion in each situation.

The employer must also ensure that the whistleblower has a fully safe and secure working environment. If deemed necessary, the employer shall also provide measures that are suitable to prevent retaliation. A worker who has been subject to retaliation may claim compensation for financial damage on objective grounds, i.e. without regard to culpability on the part of the employer.

Changes in the requirements on the undertaking`s notification procedures.

As of 01.01.2020 the undertaking`s notification procedures must contain requirements for the handling and processing of received notifications. The introductory provisions state that the routine procedures should contain specific requirements pertaining to case processing deadlines, deadlines for the implementation of any measures, including feedback to the whistleblower.

This article is part of a series of articles where the different practice groups in SVW will summarize the most important regulatory happenings in Norway in 2019.