Important Clarification from the Supreme Court on the Obligation to Offer Alternative Suitable Work Upon Dismissal

About the Case

The Health Supervision Authority decided to revoke the authorization of a healthcare worker who was employed in the home care service in Oslo Municipality. The reason for the decision was that the employee had shown a “significant lack of professional insight”. As a result, the employee was dismissed from his position in the home care service, as he could no longer continue as a healthcare worker.

It was undisputed that the employee could not continue in the position as a healthcare worker. The central question for the Supreme Court was whether the dismissal of the employee was invalid because the employer had not offered him other suitable work.

Employer’s Obligation to Offer Other Suitable Work

When downsizing in the business, the Working Environment Act imposes a duty on the employer to consider reassignment as an alternative to dismissal. A dismissal can be declared invalid if there is other suitable work in the business and the employer has failed to offer this work to the employee. A corresponding statutory obligation does not exist when the dismissal is justified by the employee’s own circumstances.

However, the Supreme Court’s judgment establishes that an employer may also have a limited and situationally determined obligation to offer other suitable work in cases of dismissal due to circumstances on the employee’s side.

The Supreme Court derives this obligation from the requirement of reasonableness in the Working Environment Act § 15-7, including the obligation to weigh the interests of the employee and the employer. It is not an unconditional obligation, but rather a factor that should be included in the weighing of the parties’ interests in each individual case.

The Scope of the Employer’s Obligation

The Supreme Court stated that it takes quite a bit before a dismissal is considered a disproportionately harsh reaction due to the employee not being offered other suitable work. This must be viewed in light of the fact that it is fundamentally up to the employer to organize its operations, and thus an obligation to offer other suitable work interferes with the employer’s managerial prerogative.

In assessing whether an employer is obligated to offer other suitable work upon dismissal due to the employee’s circumstances, the following factors should be considered:

• Firstly, the employer’s interest in terminating the employment relationship should be considered. The Supreme Court notes that if there are serious breaches of duty or untrustworthy behavior on the part of the employee, which means that the employer no longer has the necessary trust in the employee, this is a circumstance that precludes the possibility of offering another position within the company. The employer’s obligation to reassign will thus only be relevant where the employee cannot be blamed for the reason for the dismissal.
• Secondly, the strength of the employee’s interest in continuing in another employment relationship within the company should be considered. This may involve strong social considerations such as old age or the burden of support. The Supreme Court clarifies that social considerations should be given less weight in dismissals due to the employee’s circumstances compared to dismissals due to downsizing. However, social considerations will carry more weight when the employee cannot be blamed for the reason for the dismissal than if the employee is at fault. Furthermore, factors such as long seniority, whether the employer can be blamed for the employee not meeting the requirements of the position, and whether the requirements for the employee have changed during the employment may justify an obligation to offer other suitable work.
• Thirdly, whether there is another vacant suitable position in the company should be considered. The Supreme Court points out that the clear starting point must be that there is talk of an alternative position that already exists. Unlike the employer’s obligations during downsizing, only in very special cases will it be relevant to consider an existing need for work. The employer is fundamentally obligated to reasonably investigate opportunities for reassignment throughout the company.

Supreme Court’s Assessment of the Specific Case

In the specific assessment, the Supreme Court concluded that the employee’s age and seniority in the municipality suggested that the municipality had an obligation to offer him other suitable work. Unlike the previous instances, the Supreme Court nevertheless concluded that the lack of an offer of an alternative position did not mean that the dismissal was a disproportionately harsh reaction in this case. It was noted that the municipality had implemented several measures to try to make the employment relationship work and to assess the employee’s work capacity. In addition, given the circumstances of the case, the municipality had conducted reasonable investigations into whether there was other suitable and available work in the municipality.