During the course of employment, an employer may need to make changes to an employee’s job duties. This may be due, for example, to restructuring of operations, changes in production routines, or similar circumstances.
As a general rule, the employer may make changes to job duties as long as they fall within the scope of the employment relationship. This follows from the employer’s managerial prerogative (right of management and direction), which is established when the employment contract is entered into. The employee, in turn, is obliged to comply with changes that are lawfully imposed by the employer under this managerial prerogative.
It can be challenging to assess whether a particular change falls within the scope of the managerial prerogative. Many employment disputes that reach the courts concern precisely this boundary. It is therefore important that the employer carries out this assessment, as changes that fall outside the managerial prerogative require either the employee’s consent or a formal “change dismissal” procedure (endringsoppsigelse). The employer risks claims of invalidity and damages if changes are made outside the scope of the managerial prerogative without consent.
The employer should carry out an overall assessment before implementing changes
The first step for the employer is to examine what the employment contract and any applicable collective agreement state about the employee’s job duties. Any job description will also be relevant. The more detailed the duties are described, the more limited the employer’s ability to make changes under the managerial prerogative.
Even if the employer believes the changes clearly fall within its managerial prerogative, a concrete assessment should be made before implementing them. The employer should also ensure documentation of this assessment.
In this evaluation, the employer should consider the following questions:
How extensive are the changes?
The most important factor is the extent and significance of the changes. If the position loses its essential character, the changes will generally fall outside the employer’s managerial prerogative. In such cases, the employer must proceed via a change dismissal.
Does the change amount to a demotion?
If the change results in a demotion of the employee, it will fall outside the managerial prerogative. However, a distinction must be made between introducing a new management level and an actual demotion of the employee. The introduction of a new management layer does not in itself mean that the employee has been demoted. In such cases, it must be assessed whether the employee loses a significant part of their previous responsibilities, whether the employee will still be able to use their education and competence after the change, and whether the new role has a lower status within the organisation than before.
Is the change temporary or permanent?
Employers have broader discretion to implement temporary changes than permanent ones. If the change is of a more permanent nature, the employer must reassess whether it is justified under the managerial prerogative.
Does the change affect other terms of employment??
If the change in job duties also affects working hours or place of work, it is likely that the change cannot be made under the managerial prerogative. In general, the more aspects of the employment relationship that are changed at once, the less likely it is that the change is permissible without consent.
If the changes fall within the managerial prerogative, the job description should be updated
If, after a concrete assessment, the employer concludes that the changes can be implemented under the managerial prerogative, it is sufficient to inform the employee of the changes. However, the employer should also update any job description and hold a meeting with the employee to review the changes. This helps ensure that the employee has a clear understanding of their duties and of the employer’s expectations going forward.
If the employee consents, the employment contract should be updated
If the employer concludes that the changes fall outside the managerial prerogative but the employee consents, the employment contract should be updated to reflect the new terms. Any job description should also be updated accordingly.
If the employee does not consent, a change dismissal is required
If the employee does not consent to the changes, the employer must proceed with a formal change dismissal. A change dismissal must comply with the procedural rules of the Working Environment Act on dismissals. This means, in particular, that the employer must follow the procedural requirements in Chapter 15 of the Act, and that the dismissal must be objectively justified based on either the employee’s or the undertaking’s circumstances.
Source: Nils H. Storeng m.fl., Arbeidslivets spilleregler
