When is the employer obligated to offer other suitable work?

Before the summer holiday 2024, the Supreme Court of Norway issued a ruling that provides important clarifications. It has long been unclear whether employers are obligated to offer other suitable work in connection with dismissals due to the employee’s own circumstances. Now we have the answer.

In the ruling of June 26, 2024, the Supreme Court states that there is no general duty to offer reassignment in cases of dismissal based on circumstances relating to the employee. When dismissal is based on circumstances relating to the employee’ an obligation to offer reassignment only applies in exceptional cases. Please note that this is different from what applies in cases of dismissals due to downsizing or rationalization measures. In cases of downsizing and rationalization measures, the law explicitly states that a dismissal is not objectively justified if the employer has other suitable work to offer.

The main question in the abovementioned case was whether Oslo municipality’s dismissal of a healthcare worker was valid. The healthcare worker had lost their authorization due to a lack of professional competence. The employee argued that Oslo municipality was obligated to offer him other suitable work (reassignment). The Supreme Court concluded that this was not the case. The dismissal was therefore valid.

Balancing the interests of the employer and the employee

In its assessment, the Supreme Court points out that the law does not impose a duty to offer other suitable work in cases of dismissal based on circumstances relating to the employee. However, the obligation to consider other suitable work may arise in certain cases. This can be inferred from the general requirement that dismissals must be objectively justifiable. The requirement that the dismissal must be objectively justified, entails inter alia that the interests of the employer and the employee must be weighed against each other. This balancing of interests may lead to a duty to offer other suitable work in specific cases.

Limited and situational obligation

The Supreme Court emphasizes that the obligation to offer reassignment before dismissing an employee due to circumstances relating to the employee is limited and situational. Three factors are central in the assessment:

1. Firstly, the reason for the dismissal itself may prevent the offering of other suitable work, for example in cases of serious breaches of duty or unreliable behaviour.
2. Secondly, the obligation to offer reassignment depends on whether the employee has particularly strong interests in continuing with the company, such as advanced age or financial caring responsibilities.
3. Thirdly, there must be another suitable position available to offer.

If reassignment is relevant, the employer must make reasonable inquiries to determine whether another suitable available position exists. It cannot be generally assumed that large companies always have a suitable open position. As a main rule, there is also no obligation to create a new position. And if there is a suitable open position, the Supreme Court clarifies that statutory priority rights to the position take precedence.

Summary

In cases of dismissal due to circumstances relating to the employee the following apply:

• The employer has no general obligation to offer reassignment.
• It must be assessed on a case-by-case basis whether the situation gives rise to an obligation to offer reassignment.
• An obligation to offer reassignment may arise when the employee has a particularly strong interest in continuing with the company. However, this does not apply if the reason for the dismissal itself prevents the offer of other suitable work, for example, if the employee has acted in a grossly blameworthy manner.
• There is only an obligation to offer reassignment if the employer has another suitable available position. There is no general assumption that large employers always have a suitable open position.
• There will be no obligation to offer reassignment if another person has a statutory priority right to the available position. This statutory priority right takes precedence.

The decision of the Supreme Court of Norway is available here.