Do not skip the consultation meeting

Before an employer makes a decision dismissal, the matter must, as far as practicable, be discussed with the employee and the employee’s representative, unless the employee does not wish this to take place. This requirement follows from Section 15-1 of the Norwegian Working Environment Act. Both the grounds for the dismissal and, where relevant, the selection of which employee among several employees is to be dismissed must be discussed.

The question of dismissal must be discussed before a decision is made

The provision concerns the employer’s duty to discuss a proposed dismissal with the employee before any decision is made. The purpose of the consultation is to enable the employer to make the assessments necessary to satisfy the requirement of objective justification. The preparatory works to the Act emphasize that, in cases where dismissal is based on circumstances relating to the undertaking the employer must consider reassignment and carry out a balancing of interests between the needs of the undertaking and the disadvantages for the employee. Such assessments are difficult to make without involving the employee. The preparatory works further stress that, where dismissal is based on circumstances relating to the employee prior consultation is self-evident. Recent case law has also placed increasing emphasis on procedural deficiencies, including the failure to conduct adequate consultations.

The general rule is that consultations must be held

Consultations must be conducted “as far as practicable,” unless the employee does not wish to participate. The legislation is designed so that employers cannot easily rely on practical difficulties as an excuse, and the overriding general rule is that consultation meetings must be held.

No formal requirements, but principles of due process should be followed

There are no specific statutory requirements governing the notice or conduct of a consultation meeting. However, the employee should be informed of the issues to be discussed and should receive notice well in advance, so that he or she has an opportunity to prepare. As a matter of good practice, the invitation should normally be made in writing, not least for evidentiary purposes.

The employee should be allowed to bring a representative

Under the wording of the Act, the employee is entitled to be accompanied by a union representative. As a general rule, the employee should also be permitted to attend with an adviser of his or her own choosing, such as a lawyer.

Always conduct a consultation meeting

The consultation requirement has been characterized in the preparatory works as a procedural rule. Consequently, a failure to conduct a consultation meeting will not necessarily render a dismissal invalid. However, such a failure constitutes a procedural defect and will be one of several factors considered when assessing whether a dismissal is objectively justified. Its significance must be evaluated on a case-by-case basis. Failure to hold a consultation meeting may also affect the amount of any compensation awarded. Accordingly, we recommend that employers always conduct a consultation meeting with the employee before making any decision regarding dismissal, unless the employee expressly states that he or she does not wish to participate.