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Termination means ending an employment relationship. Both the employee and the employer can give notice, but only the employer’s termination must be based on a valid (objective) reason. For the employee, this provides strong protection – while the employer is obliged to follow strict rules for the termination to be valid. In this article, our lawyers explain what rights you as an employee have if you receive a notice of termination.
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Chapter 15 of the Working Environment Act regulates the rules on termination and sets the framework for how employment relationships can be brought to an end. The provisions are intended to safeguard both the employer’s need for flexibility and the employee’s legal protection, and are therefore central in Norwegian labour law.
To provide a clear overview, this article goes through all provisions in Chapter 15 in chronological order. The presentation gives a holistic picture of the rules on termination without going too deeply into each individual issue. The aim is to give a clear and structured overview of the topic, so that the reader gains a good understanding of the main features of the system and its practical significance.
Before the employer makes a decision to terminate, the matter shall, as far as practically possible, be discussed with the employee and their elected representative, unless the employee does not wish this, cf. the Working Environment Act (WEA) § 15-1 (1). The main purpose of the consultation meeting is to ensure that a termination is based on a correct factual basis. The reasoning is that the employer cannot make a sound overall assessment – including the disadvantages a termination will cause for the employee – without giving the employee an opportunity to present their views.
In the meeting, the basis for the termination must be discussed, cf. WEA § 15-1 second sentence. The employee is also entitled to bring an “elected representative” to the meeting. This does not prevent the employee from bringing another representative instead, such as a lawyer.
The Working Environment Act does not set formal requirements for the invitation to the consultation meeting or require a formal record of the meeting. However, proper case handling implies that the employee is informed about the purpose of the meeting and that the notice period for the meeting is reasonable, so that the employee has time to obtain a representative.
The employee is not obliged to attend the consultation meeting, but choosing not to attend will normally entail risk and disadvantages. As a general rule, the employee should therefore always try to attend.
If the employer does not call a consultation meeting, this does not in itself make the termination invalid. It may, however, be an important factor indicating that the termination is not objectively justified, cf. WEA § 15-7.
If the employer is considering collective redundancies, special rules on information and consultation apply under WEA § 15-2. “Collective redundancies” means terminations given to at least 10 employees within a period of 30 days, where the terminations are not justified by circumstances related to the individual employees, cf. WEA § 15-2 first paragraph.
An employer considering collective redundancies must, as early as possible, start consultations with the employees’ elected representatives, cf. WEA § 15-2 second paragraph. The requirement that notice be given “as early as possible” is interpreted strictly and coincides with the duty to call the elected representatives in for consultations (see below). The aim of such consultations is to reach agreement on how to avoid collective redundancies or reduce the number of employees who are dismissed.
Under WEA § 15-2 third paragraph, the employer must provide the elected representatives with all relevant information, including a written notice on:
The written notice must be given as early as possible and no later than at the same time as the employer calls for consultations.
As a main rule under the Working Environment Act, there is a mutual notice period of one month in employment relationships, unless otherwise agreed or follows from a collective agreement, cf. WEA § 15-3 first paragraph. Mutual notice means that both employer and employee must comply with the same period.
However, the Act opens for longer notice periods depending on the employee’s length of service and age, cf. WEA § 15-3 second and third paragraphs. For the extended periods to apply, the employee must meet the requirements for both length of service and age at the time of notice. If the employee has been employed for at least five years, the mutual notice period increases to at least two months, cf. § 15-3 second paragraph first sentence. After ten years of service, the notice period is further extended to three months, cf. § 15-3 second paragraph second sentence. For employees who both have ten years’ seniority and have reached a certain age, special notice periods apply under WEA § 15-3 third paragraph.
The parties are free to agree on a longer notice period than one month, either in the individual employment contract or through collective agreements. This is common practice, and many businesses operate with a mutual notice period of three months.
Shorter notice periods, on the other hand, can as a rule not be agreed in advance between employer and employee. An exception applies for businesses bound by collective agreement, where the employer and the elected representatives may enter into an agreement on a shorter period before the termination takes place.
Notice periods are calculated from and including the first day of the month after the notice is given, cf. WEA § 15-3 fourth paragraph.
WEA § 15-4 sets out the formal requirements for a termination. Under the first paragraph, a termination must always be in writing.
1. Receipt of the termination
A termination from the employer must be delivered in a way that ensures the employee actually receives it. It must either:
be delivered in person, or
be sent by registered mail.
This is mainly considered a rule of order, cf. Ot.prp. no. 41 (1975–76) p. 69. This means that a termination delivered in another manner than prescribed by law is not automatically invalid. It may, for instance, be given by e-mail or SMS. In such cases, however, the employer bears the burden of proof that the termination actually reached the employee.
2. Content requirements
Under WEA § 15-4, the termination must clearly inform you of your rights. It must state, among other things:
the right to demand negotiations with the employer
the right to bring a lawsuit before the courts
the right to remain in the position while the case is pending
the deadlines for demanding negotiations and for bringing a lawsuit
who the correct opposing party is (i.e. who you must sue).
If the termination is due to circumstances relating to the undertaking (e.g. downsizing), it must also include information about your preferential right to a new position under WEA § 14-2.
The employee may demand a written statement of reasons for the termination from the employer under WEA § 15-4 third paragraph.
3. Consequences of breaches of the formal requirements
If the termination does not meet the formal requirements, this has two main consequences. First, the time limit for bringing legal action under WEA § 17-4 fourth paragraph does not apply. Second, as a general rule, the termination must be declared invalid if the employee brings proceedings within four months of the termination, cf. WEA § 15-5 first paragraph. The court may nevertheless refrain from declaring it invalid if “special circumstances make this clearly unreasonable”, cf. WEA § 15-5 first paragraph.
If the employer still wishes to terminate the employment relationship, they must issue a new, formally correct notice of termination, cf. Ot.prp. no. 41 (1975–1976) p. 70.
WEA § 15-6 contains rules on protection against termination in employment relationships with an agreed probationary period. The probation period is intended to give the employer an opportunity to assess the employee’s suitability for the work and reduce the risk of wrong hiring decisions. This is also based on a desire that employers dare to hire people who otherwise stand weakly in the labour market, and to counteract the use of temporary employment, cf. Ot.prp. no. 50 (1993–1994) p. 163.
According to the provision, if an employee “is in writing employed on a specified probationary period” and is terminated, the termination must be justified by “the employee’s adaptation to the work, professional competence or reliability”, cf. WEA § 15-6 first paragraph. The decisive factor is whether the employee has received necessary training and a real opportunity to adapt to the work, cf. Rt. 2003 p. 1071 and Ot.prp. no. 50 (1993–1994) p. 163.
If the employee has been absent during the probationary period, the employer may extend the agreed probationary period by a period corresponding to the length of the absence, cf. WEA § 15-6 fourth paragraph. The employer must, however, notify the employee in writing about the possibility of extension and give written notice of the extension before the original probation period expires. If the absence is caused by the employer, typically lay-offs, no such right to extension exists. Absence that may justify an extension will normally be sick leave and various forms of leave.
Under WEA § 15-7 first paragraph, an employee cannot be dismissed unless the termination is “objectively justified by circumstances relating to the undertaking, the employer or the employee.” This so-called requirement of objective justification is a legal standard whose content has been developed through case law over time.
Since the provision was introduced, the requirement has been interpreted increasingly nuanced. Previously, most weight was placed on the employer’s needs, but over time considerations of fairness have become more important. Today, a central part of the assessment is how the termination affects the employee and whether, based on an overall assessment, it appears reasonable and natural that the employment relationship ends. This was emphasised, among other things, in Rt. 2009 p. 685 (para. 52), where the Supreme Court stated that the assessment must be based on a comprehensive balancing of the parties’ interests.
Objective grounds are often divided into two main categories:
Circumstances relating to the undertaking – typically downsizing, reorganisation and financial difficulties.
Circumstances relating to the employee – typically poor work performance, cooperation problems or serious breaches of duty.
Here, the employer must document that there is in fact a real need for downsizing or reorganisation. The court will weigh the company’s needs against the disadvantages the termination causes the employee, cf. WEA § 15-7 second paragraph.
The selection pool and criteria (e.g. seniority, competence) must be objective and reasonable.
The employer has a duty to consider reassignment if suitable alternative work exists.
As an employee, you may have a preferential right to a new position in the company for up to 12 months.
If the employer cannot document that these processes have been followed, a termination may be declared invalid.
(See also our main article on downsizing.)
Where the termination is based on circumstances relating to the employee, strict requirements also apply. Normally, the employer must have given clear feedback, followed up with warnings and given the employee an opportunity to improve – unless the matter is very serious.
Not objectively justified: discriminatory reasons (gender, age, religion, union membership, pregnancy, illness within the protected period) or irrelevant external factors.
Usually objectively justified: serious breaches of duty such as violence, theft, substance abuse at work or gross disloyalty.
Borderline cases: low work capacity, cooperation problems, high absence outside the protected period.
Even if the employer considers the circumstances to be serious, the court must assess whether termination is a proportionate reaction to the employee’s behaviour. In many cases, the courts have set aside terminations because the employer failed to document sufficiently, or because milder reactions should have been tried first.
The employer has the burden of proof that the facts underlying the termination are correct and sufficient, cf. HR-2019-928-A. If doubt remains, it will normally benefit the employee. The burden of proof relates to the circumstances invoked by the employer as grounds. For example, if poor performance is invoked, it is the employer who must make it probable that the performance is inadequate.
In practice, this means that as an employee you are in a strong position if you challenge the termination. The courts will carefully examine whether the employer actually had grounds and followed a proper process.
In some absence situations, special protection against termination applies. In short, the Working Environment Act provides special protection in case of absence:
due to illness, cf. WEA § 15-8
due to pregnancy and after birth or adoption, cf. WEA § 15-9
due to military service etc., cf. WEA § 15-10
Illness
An employee who is wholly or partly absent from work due to accident or illness is protected against termination for the first twelve months after the incapacity arose, cf. WEA § 15-8 first paragraph. During this period, the employer cannot terminate the employee on grounds of the illness.
When the 12-month protection period has expired, absence due to illness or disability may, depending on the circumstances, form grounds for termination. Such termination must then be assessed under WEA § 15-7, which requires that the termination be objectively justified by circumstances relating to the undertaking, the employer or the employee.
It is important to note that the protection period starts anew if the employee returns to work and then becomes ill or incapacitated again. This does not apply if the period back at work is only very short, cf. Ot.prp. no. 49 (2004–2005) p. 231. This must be assessed concretely, taking into account how long the employee has been back and whether the absence stems from the same or similar illness.
Pregnancy
An employee who is pregnant may not be dismissed for that reason, cf. WEA § 15-9 (1). As with § 15-8, the protection does not prevent termination based on other grounds. Pregnancy is, however, a social factor that weighs into the assessment of objective justification and raises the threshold for termination under § 15-7.
The same burden of proof applies as under § 15-8: the employer must make it “highly probable” that the termination during the protection period is not due to the pregnancy. The employee must be able to document the pregnancy by a medical certificate if the employer demands it, cf. WEA § 15-9 (1).
The protection also applies to leave of up to one year for the types of leave mentioned in WEA § 15-9 (2). This applies when the employer “is aware that the absence is for these reasons or the employee without undue delay notifies that this is the reason for the absence”.
Military service
An employee may not be dismissed because of leave for compulsory or voluntary military service or similar public service, cf. WEA § 15-10, cf. § 12-12. The provision also applies to voluntary service of up to a total of 24 months in forces organised by Norwegian authorities for participation in peace operations.
Terminations that take place immediately before or during the period when the employee is absent from work due to leave under § 12-12 are presumed to be due to this circumstance. This applies unless “something else is made highly probable”, cf. WEA § 15-10 second paragraph. The same burden of proof thus applies as in §§ 15-8 and 15-9.
The employee’s right to remain in the position during a dispute about termination is regulated in WEA § 15-11. The rule is meant to ensure that the employee has a real possibility to continue the employment if the termination is later found invalid. In practice, it has proved difficult for employees to return to their positions after being away during a dispute, cf. NOU 2004:5 pp. 321–322. The rule is therefore intended to secure continuity in the employment relationship and make the protection against termination effective.
The employee has an unconditional right to remain in the position as long as negotiations are ongoing under WEA § 17-3, cf. WEA § 15-11 (1). The employee also has the right to remain in the position after the negotiations are concluded, cf. WEA § 15-11 (2). This right is, however, conditional.
To keep the right to remain in the position after negotiations, the employee must, before the expiry of the notice period, either bring a lawsuit or notify the employer in writing that they will do so, cf. WEA § 15-11 (2). The lawsuit must further be filed within the eight-week limitation period, cf. WEA § 17-4.
It is important to note that the right to remain in the position does not apply in disputes concerning summary dismissal, termination during probation, for leading employees or temporary employees, cf. WEA § 15-11 (3). Nor does it apply where the employee only brings a claim for compensation.
If a termination is in breach of WEA §§ 15-6 to 15-10, the court shall, upon claim from the employee, declare the termination invalid, cf. WEA § 15-12 (1) first sentence. Invalidity means, as a starting point, that the employee shall return to the same position, cf. Rt. 2009 p. 685 (para. 69).
In most termination cases, the employee will have remained in the position. Where the employee has in fact been out of work, they are in principle entitled to be reinstated in their former position.
In special cases, the court may, upon claim from the employer, decide that the employment relationship shall end, cf. WEA § 15-12 (1) second sentence. The court must then weigh the parties’ interests. If it is clearly unreasonable that the employment continues, the court may determine that it shall end.
The employee may claim compensation if the termination is in breach of §§ 15-6 to 15-11. This follows from WEA § 15-12 (2). Compensation is set at the amount the court finds reasonable, taking into account the economic loss, the conduct of employer and employee and the circumstances of the case.
The Working Environment Act allows the employer to suspend an employee if there is “reason to believe that he or she has committed acts that may lead to summary dismissal” and “the needs of the undertaking so indicate”, cf. WEA § 15-13 (1). One condition is that there must be a concrete suspicion of conduct that may qualify for summary dismissal. A preponderance of probability is not required.
Furthermore, suspension must be necessary due to the needs of the undertaking. The assessment particularly considers three aspects:
the need to prevent further breach of the employment contract
the employer’s need to investigate the matter without the employee being able to influence this, for example by removing evidence
considerations relating to third parties, such as colleagues, customers or the general public.
Suspension will not be a reasonable solution if the employer’s interests can be safeguarded by other, less intrusive measures.
WEA § 15-13 a (1) sets a general age limit of 72 years for protection against termination. This means that the employer, without any further grounds, may terminate an employee who has reached the age of 72. The provision gives the employer a possibility, but not a duty, to end the employment when the employee turns 72. The purpose is to ensure a dignified end to the employment relationship. The limit is intended to prevent terminations due to declining performance and at the same time avoid conflicts and lawsuits such terminations may cause.
Under the second to fourth paragraphs, a lower age limit than 72 may be set if certain conditions are met. The main rule in the third paragraph is that the limit cannot be set lower than 70 years. In addition, the age limit must be known to the employees, applied consistently and combined with a satisfactory pension scheme.
The second paragraph functions as a “safety valve” and allows for a lower limit than 70 where health or safety considerations make this necessary. In both the second and third paragraphs, the age limit must comply with the rules on lawful differential treatment under the EU framework directive, cf. WEA § 15-13 a (4).
Under WEA § 15-14, the employer may summarily dismiss an employee with immediate effect if the employee has “grossly breached their duties” or otherwise “materially breached the employment contract”, cf. first paragraph.
Summary dismissal means that the employment ends on the spot, and the employee loses both their position and salary income from the date of dismissal. The consequences are therefore usually severe for the individual employee.
A condition for summary dismissal is that there must be “gross breach of duty”. It is not possible to give an exhaustive list of what may constitute such a breach, but examples include refusal to obey orders, unlawful and/or criminal acts, breaches of the duty of loyalty or confidentiality, use of intoxicants while on duty, and harassment of colleagues, customers or others.
When assessing whether the conditions for summary dismissal are met, a concrete overall assessment must be made. Relevant factors include the nature and seriousness of the act, its harmful effects, the employee’s motive and position, and the employer’s situation. A key question will be whether ordinary termination – instead of summary dismissal – would be a sufficient reaction.
An employee who resigns after lawful termination is entitled to a written reference from the employer. This follows from WEA § 15-15 first paragraph. The requirement of “lawful termination” relates only to the employee’s own resignation. The reference must be available at the latest upon the employee’s departure. The reference must contain information about:
the employee’s name
the employee’s date of birth
the nature of the work
the duration of the employment.
The first paragraph does not limit the employee’s right to demand a more detailed reference in workplaces where this is customary and nothing else is laid down in a collective agreement, cf. WEA § 15-15 second paragraph. In many businesses, it is customary to provide a more detailed reference, for example about the employee’s professional skills and performance.
An employee who is summarily dismissed is also entitled to a reference. Note, however, that the employer may, without specifying the reason, state in such a reference that the employee has been summarily dismissed, cf. WEA § 15-15 third paragraph.
A termination may have major financial and personal consequences. Many employees therefore choose to seek legal assistance as early as possible.
A lawyer can help you to:
assess whether the termination is lawful and objectively justified
check whether all formal and procedural rules have been followed
demand negotiations with the employer
negotiate a severance agreement with financial compensation
bring a lawsuit if the termination is invalid, and represent you in court.
As an employee, you have strong rights under the Working Environment Act, but it is often necessary to enforce them actively. With a lawyer on your side, you are better equipped to secure either continued employment or a financial solution that compensates your loss.
Termination cases are complex and involve many formal requirements and legal assessments. Using a lawyer – whether you are an employer or an employee – can be crucial to avoiding costly mistakes and burdensome conflicts.
At Advokatfirmaet Verito AS, we offer assistance throughout the process, from assessing whether there is objective grounds, carrying out the consultation meeting and procedural requirements, to negotiations or court proceedings if necessary. We also assist with severance agreements and alternative solutions where appropriate.
Contact us today for a free initial assessment. You can reach us by phone +47 24 02 21 20, e-mail post@verito.no or via the contact form on our website.
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