Employee with permanently reduced work capacity could be dismissed

An employee had been employed since 2001 but gradually developed health problems that prevented him from working full-time. Over a period of several years, the employer sought to facilitate his return to full employment through alternative positions and reduced working hours. In 2019, however, it became clear that the employee would not be able to work more than 50 per cent of a full-time position. He was subsequently dismissed because the employer considered it impractical to continue permanently employing him on a half-time basis in what was intended to be a full-time role.

Under the Norwegian Working Environment Act, employers have a duty to provide reasonable accommodations for employees whose work capacity has been reduced due to illness or other causes, “to the extent possible.”

The Supreme Court held that the challenges associated with permanently reducing the employee’s working hours in this case went beyond what could reasonably be regarded as “possible” accommodation within the meaning of the Act. Particular weight was given to the employer’s legitimate interest in determining the organisational and staffing structure of its business.

The Court noted that judicial review of dismissals is generally based on the documentation of the employer’s assessments and considerations prior to the dismissal. However, the Supreme Court held that, in a case such as this, it was permissible to supplement the documentary evidence with testimony given by the employer during the court proceedings.

The judgment provides guidance on the scope of an employer’s duty to accommodate employees whose work capacity has been reduced. It also clarifies the extent to which courts may rely on information presented during litigation when assessing the basis for a dismissal.

Source: Supreme Court