The Right to Remain in the Post When Dismissal Is Due to Circumstances related to the Company

An employee who contests a dismissal generally has the right to remain in their post while the case is being processed by the courts. It takes a lot for the court to decide that the employee shall leave his/her post when the dismissal is due to circumstances related to the company. However, it can happen. The Eidsivating Court of Appeal’s decision in LE-2025-115618 is a good example of this.

Background of the Case

Kongsberg Automotive AS had to downsize one of its R&D departments due to negative market developments. The selection of redundant employees was made after discussions with union representatives from NITO and Tekna. The union representatives agreed that the selection criteria should be competence, seniority, and social considerations, with particular emphasis on competence. The redundant employee who was dismissed and who contested the dismissal had the same seniority as a colleague but was assessed to have lower competence. When the dismissed employee took legal action, the employer requested that the district court ordered the employee to leave his post during the legal proceedings. The district court did so, and the employee left his post before the Court of Appeal had time to assess the appeal.

Legal Principles of the Court of Appeal

The Court of Appeal started from the main rule in the law that the employee has the right to remain in the position during the court’s review of the validity of the dismissal, provided that the lawsuit is filed in time. The Court of Appeal also referred to the exception in the law, which states that the court may, at the employer’s request, decide that the employee must leave his/her post if the court finds it unreasonable for the employment to continue during the legal proceedings. The Court of Appeal therefore had to assess whether the condition of unreasonableness was met. This depends on an overall assessment of the interests/needs of both the employer and the employee, as well as the likely outcome of the dismissal case.

In interpreting the exception, the Court of Appeal pointed out that the situation is different if the dismissal is based on circumstances related to the company rather than the employee. In case of the former, Supreme Court practice sets a high bar: it is only in rare circumstances that the court will find it unreasonable for the employee to remain in their post during the legal proceedings.

The Court of Appeal’s Specific Reasonableness Assessment

Genuine Need for Downsizing

Both the Court of Appeal and the district court found it proven that the dismissal was part of a genuine downsizing process, and that there was a real need for downsizing based on business economic assessments. In its reasonableness assessment, the Court of Appeal placed significant weight on the employer’s need for savings and that further downsizing in the group had been announced.

Proper Process and Agreement with Union Representatives

Both the Court of Appeal and the district court found considered the process leading up to the dismissal to be proper. There was agreement with the union representatives on the selection criteria, and the employee’s union had no objections to the criteria or the selection. This was of central importance.

Likely Outcome of the Dismissal Case

The Court of Appeal agreed with the district court that the dismissal appeared to be objectively justified and valid.

Employment Relationship Complicated

The Court of Appeal also emphasized that the employment relationship was complicated by the dismissed employee’s conduct and accusations against the employer in connection with the dismissal case. The court found that the employee had accused his manager of surveilling/ pursuing him and had claimed that he would harm his manager.

Few Work Tasks to Assign

The employer stated that there were few tasks to assign to the dismissed employee during the court’s review of the dismissal case. The Court of Appeal therefore assumed that the company neither had an unmet need for labour nor tasks that the employee could perform until the case was decided.

Refused Offer of Assistance to Find Other Work

The Court of Appeal also emphasized that the dismissed employee refused an offer of assistance to find other work. The three other employees who were dismissed accepted such assistance and found other positions.

Conclusion

After an overall assessment, the Court of Appeal concluded that it was unreasonable to maintain the employment relationship during the court proceedings. The employee was therefore ordered to leave his post during the court proceedings, despite the dismissal being based on circumstances related to the company.

Summary

The main rule is that the employee has the right to remain in his/her post during the court’s review of the dismissal case, provided that the lawsuit is filed in time. Exceptionally, the court may, at the employer’s request, decide that the employee must leave his/her post, provided that the condition of unreasonableness is met. If the dismissal is based on circumstances related to the company, it takes “relatively much” for this condition to be considered met. But it is not entirely impossible. Especially if the need for downsizing is genuine, the downsizing process is proper, the dismissal appears valid, and there are few or no tasks to offer the redundant employee. It is therefore important to ensure sufficient documentation, involve union representatives, and ensure a proper process. The court may also consider whether the dismissed employee has complicated the employment relationship and whether assistance in finding other work has been offered.