Clarification from the Supreme Court – Exemption from Night Shifts

About the Case

The employee, aged 61, worked offshore as a well service specialist. The employer had positions both offshore and on the mainland. The employer was bound by the well service agreement where the workers are part of a so-called availability arrangement where they are available for assignments for four weeks followed by four weeks off. During the availability period, the workers can be sent offshore for up to 14 days at a time, where the work is arranged in two shifts of 12 hours, covering the entire day.

In May 2020, the employee suffered a heart attack. When he returned to work in February 2021, he applied for an exemption from night shift. Initially, this was granted. In October 2021, the employer informed him that such an exemption would not be granted on a general basis, but he was offered to change his workplace from offshore to the mainland. The employee did not want such a change.

What does § 10-2 second paragraph of the Working Environment Act entitle?

The Supreme Court held that § 10-2 second paragraph of the Working Environment Act primarily provides a right to remain in the current employee group or position one holds, but without the obligation to work at night. This is despite the availability of alternative work within the company. However, the possibility of alternative work will still be included in the assessment of whether the exemption can be implemented ‘without significant inconvenience’ for the company.

The exception in § 10-2 second paragraph of the Working Environment Act is in addition to the right an employee has under § 10-2 fourth paragraph of the Working Environment Act to reduce their working hours due to age over 62 years or other health, social, or other significant welfare reasons.

Conditions for the Right to Exemption from Night Shift – The Inconvenience Assessment

Three conditions must be met for the right to exemption from night shifts: (1) the employee must work “regularly” at night, (2) there must be “health, social or other significant welfare reasons” that necessitate the exemption, and (3) the exemption can be implemented “without significant inconvenience” to the business. It was the last condition that was crucial in the case before the Supreme Court. The court stated that the provision must be viewed in conjunction with § 4-6 of the Working Environment Act, which imposes an obligation on the employer to accommodate if an employee has reduced work capacity due to accident, illness, wear and tear, or similar.

The Supreme Court clarified that § 10-2 second paragraph of the Working Environment Act, which grants the right to exemption from night work, provides the employee with better rights than those stipulated by the Working Time Directive. The Supreme Court stated that “the threshold for when there is a significant inconvenience is lower when considering a solution for the employee that is better than what the directive requires, than when the solution is at the directive’s minimum level.”

The Supreme Court established that the inconvenience assessment must involve a balancing of interests, where the threshold for what constitutes a “significant inconvenience” in allowing the employee to continue in the position will depend on the rationale for requesting an exemption from night work, whether the employer can reassign the workforce in consideration of other employees, the additional administrative burden imposed on the employer, and the employee’s specific interest in obtaining the exemption from night work. The Supreme Court also referred to the legislative history, which indicates that a significant factor is whether there is available daytime work for which the individual is qualified within the company. However, the Court stated that it should not be considered whether an exemption for one employee would lead to more employees seeking similar exemptions.

In summary, the Supreme Court stated that the threshold will be high for the inconveniences to the business to be significant if it involves serious and potentially life-threatening health problems, but it will also matter whether there is other available daytime work for which the employee is qualified. Inconveniences for other employees and associated administration of shift plans and the like will also be relevant in such situations if these inconveniences go beyond those that almost always occur in such cases.

The Specific Assessment

In the specific case, the Supreme Court emphasized the organizational problems for the employer, particularly given the special nature of the availability arrangement, as well as the consideration for other employees.

However, the Supreme Court found reason to place significant emphasis on the fact that the employee had been offered work on land which was declined, more so than the Court of Appeal had done. This was despite the fact that the employee would receive reduced pay and lose the “loss of license” insurance. What the work would entail was unclear, as the employee had not wished to discuss the possibility. The Court stated that the work must be of a nature and with such conditions that the employee’s opportunity to be transferred is real. However, there is no right to maintain a particularly high salary level, and the loss of “loss of license” insurance could not be emphasized either.

The Supreme Court also found that the fact that the business had managed to avoid giving the employee night shifts until the time of the judgment did not mean that a formalized exemption would not entail significant inconveniences. The employee’s argument that he would be sick before each night shift was dismissed with reference to the difficulty of having a clear opinion on whether a doctor would issue a sick note in each case.

The Court therefore concluded that an exemption would entail a “significant inconvenience” for the employer, and the employee did not prevail.

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