An employee can terminate his own employment relationship without further justification. A dismissal by the employer, on the other hand, must always be factually justified in the circumstances of the employer or the business, or in circumstances that are due to the employee itself. When does the employer actually have such a factual basis?
Authors: Partner and lawyer Maria Elena Kvalen and lawyer Malin Stenseth
Dismissal due to the employer’s or the business’s circumstances
Downsizing and redeployment processes may be necessary to ensure a sound basis for further operations or to make operations in the business more efficient. In such situations, the employer will normally have a factual basis for dismissal.
Dismissal due to the employee’s circumstances
Typical employee conditions that can provide factual grounds for dismissal are:
- Disloyalty and breach of instructions
- Harassment
- Insufficient work performance
- Missing work and illegal absences
- Use of drugs
Note that employees have strong protection against dismissal and that the threshold for factual dismissal is high. In the case of dismissal due to insufficient work performance, the courts have, for example, set a requirement that there must be a marked failure or a qualified deviation in the work performance. If this is not the case, the dismissal can be considered unfair.
Dismissal due to illness of the employee
The employer cannot dismiss an employee on sick leave due to sickness absence during the first 12 months of a sickness absence, regardless of the cause of the illness and the prospects for recovery. However, an employee on sick leave can be dismissed on grounds other than the illness itself. Read more about dismissal and sick leave here.
Dismissal during trial period
During the trial period, the Working Environment Act gives the employees somewhat weaker protection against dismissal. Read more about dismissal during a trial period here.
Redundancy and offer of alternative employment
The threshold for valid dismissal will normally be lower if the employee is simultaneously offered a new position in the business, typically in connection with reorganisation. Redundancy and offer of alternative employment will also be applicable if there is a question of changes that lie outside the employer’s control. Read more about redundancy and offer of alternative employment here.
What can the employer decide? Read more about management rights here.
How to proceed?
The Working Environment Act sets out strict requirements for how the employer must proceed in dismissal processes. Among other things, there is a requirement that the employer must hold a discussion meeting with the employee and the employee’s representative before a decision on dismissal is made. In this way, the employee is given the opportunity to comment on and counter the conditions on which a dismissal may be based, and the employer gets the best possible basis on which to make a well-considered decision.
The Working Environment Act also sets out requirements that the dismissal must be in writing, and that it must be delivered to the employee personally or sent by registered post.
The notice of dismissal must contain the following information:
- Employees’ rights to demand negotiations and bring legal action
- Employee’s rights to continue in the position
- The time limits that apply to demand negotiation, bring legal action and to continue in the position
- Who is the employer and the right defendant in any dispute
Remember: If the dismissal is justified in the business’s circumstances, the dismissal must also contain information about preferential rights.
Did you know:
- There is no requirement that the employee must have received a verbal or written warning for a dismissal to be considered factually justified.
- A dismissal cannot be justified solely by the fact that the employer has found a candidate for the position who is "better" or "smarter".
- A dismissal that does not meet the formal requirements will, as a general rule, be considered invalid if the employee takes legal action within four months.
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If you are unsure about the process, we recommend that you seek legal assistance today. SANDS’ employment law team regularly assists employers in dismissal processes. Feel free to contact us.