Offshore worker was not entitled to exemption from night work

An offshore oil services worker sought an exemption from night work on health grounds. Under Section 10-2(2) of the Norwegian Working Environment Act, such an exemption may be granted provided that it does not result in a “significant disadvantage to the undertaking.” The provision implements a directive rule granting workers the right to be transferred to daytime work for which they are qualified, where this is “possible.”

The Supreme Court held that the employee was not entitled to an exemption from night work

All five justices of the Supreme Court agreed that the employee was not entitled to an exemption from night work. However, they were divided 4–1 as to the reasoning. According to the majority’s interpretation of the Norwegian implementing provision, the employee is entitled, as a primary option, to be exempted from night work within his existing position. In this respect, the Norwegian provision affords employees greater protection than is strictly required by the directive. An important factor in assessing whether an exemption would cause a significant disadvantage to the undertaking is therefore whether alternative daytime work is available for which the employee is qualified.

The employer had offered the employee alternative onshore work

The employer had offered the employee alternative work onshore, but the employee had been unwilling to discuss this option. Instead, he insisted on retaining his existing position without performing night shifts. For the majority, the employer’s offer formed part of the broader assessment of whether the requested accommodation would create a significant disadvantage for the undertaking. The Court concluded that exempting the employee from night work in his existing offshore position would, in the circumstances of the case, constitute a “significant disadvantage to the undertaking.” The dissenting justice took the view that the statutory provision does not go beyond the requirements of the directive and that the employer had, in any event, fulfilled its obligations under the Working Environment Act by offering the employee alternative onshore employment.

The judgment provides guidance on the interpretation of Section 10-2(2) of the Norwegian Working Environment Act in light of Article 9(1)(b) of the Working Time Directive (Directive 2003/88/EC). 

Source: Supreme Court