Unlawful Dismissal – Right to Keep Your Job & Claim Compensation

Many employees wonder whether it is possible to get their job back after an unlawful dismissal. In this article, we explain when it is relevant to demand reinstatement, which conditions must be met, and how such cases are handled under Norwegian law.

Read this article on our website Unlawful dismissal

What is an unlawful dismissal?

A dismissal is unlawful if the employee is terminated without the dismissal being “objectively justified by circumstances relating to the undertaking, the employer or the employee”, cf. the Working Environment Act (WEA) section 15-7.

In practice, most dismissals are justified either by circumstances relating to the employee or the enterprise. Employee-related circumstances may be blameworthy, such as unjustified absence, disloyalty or harassment. They may also be circumstances for which the employee cannot be blamed, for example long-term sickness absence. Dismissals justified by the undertaking’s circumstances are often based on downsizing, rationalisation or reorganisation.

In several recent decisions, the Supreme Court has clarified that the requirement of just cause in section 15-7 is strict, see for example Rt. 2009 p. 685 paragraph 52 and HR-2022-390-A paragraph 34. The employer must be able to document that the basis for the dismissal is both correct and sufficient, and carries the burden of proof for this, cf. HR-2019-928-A paragraph 52. This means that the employer must show that the dismissal is based on real circumstances and that other, less intrusive measures have not been sufficient.

The legal consequence of an unjustified dismissal under section 15-7 is that the dismissal is invalid, and that the employee as a main rule has a right to return to the position, cf. WEA section 15-12 (1). In addition, the employee may be awarded compensation for economic and non-economic loss, also called redress, cf. section 15-12 (2). The article will below go through which rights an employee has in the event of an unlawful dismissal, and what you should/can do.

Right to demand negotiations

If an employee is dismissed on an unlawful basis, he or she has the right to demand negotiations. A notice of dismissal must contain information about the employee’s right to negotiations, cf. WEA section 15-4 (2) (a). The idea is that the employee shall be made aware of this right. The right to negotiations is regulated in section 17-3. The provision applies both where the employee claims that the dismissal is unlawful, and where the employee only claims compensation, cf. section 17-3 (1). The purpose of the right to negotiations is to give the employee a better basis for assessing whether the dismissal is lawful.

If the employee wishes to exercise the right to negotiations, certain requirements as to procedure must be followed. First, the employee must notify the employer in writing. Second, the notification must be given within two weeks from when the dismissal “took place”, cf. WEA section 17-3 (2) (a). For calculating the two-week deadline, the decisive point in time is when the notice of dismissal reached the employee.

The legal consequences if one of the parties refuses negotiations are not further regulated in the Act. From the preparatory works it follows, however, that such refusal may have consequences for the right to remain in the position:

“If the employer has refused to negotiate, the court should hardly grant him a request that the employee must vacate the position. The opposite applies if the employee has refused to negotiate.”
Ot.prp. nr. 41 (1975–1976) p. 73.

The article will next look more closely at the right to remain in the position while negotiations are ongoing.

Right to remain in the position during negotiations

The employee’s right to remain in the position in connection with a dismissal dispute is regulated in WEA section 15-11. The purpose of the provision is to ensure that the employee has a real opportunity to continue in the employment relationship if the dismissal is later found invalid. The provision safeguards the employee’s job protection.

The main rule appears from section 15-11 (1), which gives the employee an unconditional right to remain in the position as long as negotiations under section 17-3 are in progress. The employee also has the right to remain in the position after negotiations have been concluded, cf. section 15-11 (2) first sentence. This right is, however, conditional upon the employee bringing legal action within the time limits laid down in section 17-4. The deadline for bringing a lawsuit to have the dismissal set aside is eight weeks.

The exception from the main rule on remaining in the position during negotiations appears from section 15-11 (3) first sentence. The exception applies in disputes concerning summary dismissal, dismissal during the probationary period, for hired-in employees or temporary employees. For these groups there is in principle no right to remain in the position during negotiations. At the request of the employee, however, the court may still decide that the employee shall remain in the position, provided that legal action is brought within the time limits in section 17-4, cf. section 15-11 (3) second sentence.

Right to reinstatement

If a dismissal is found unlawful, the employee, as a starting point, has a right to be reinstated. This follows from section 15-12 of the Working Environment Act and is a central element of Norwegian protection against dismissal. The right to return to the job is crucial for the protection to be effective; without such a mechanism, the employer could in practice terminate employment relationships by paying compensation and thereby “buying out” the employee.

For the employee to get the position back, it is sufficient to claim that the dismissal is invalid. A separate claim for reinstatement is not required. When the court concludes that the dismissal is invalid, this in itself entails that the employer must reinstate the employee.

If, at the time of the judgment, the employee has already left the position, invalidity means that the employer must place the employee “in the position or in a position corresponding to the one he had”, cf. Ot.prp. nr. 41 (1975–1976) p. 78.

If the original position is vacant, the employee is entitled to that very position. In many cases, however, the position will have been filled by someone else when the dispute is decided. In such situations, the employee is entitled to a corresponding position, i.e. a role that is as close as possible to the previous position in terms of responsibility, duties and salary level.

If the undertaking has no such corresponding position, the employer is in principle obliged to create one. Exceptions apply to special types of positions — typically management positions or other particularly independent roles — where it is not practically possible or defensible to establish a corresponding position.

Right to compensation

An employee who claims to have been unlawfully dismissed may – possibly in combination with a claim for invalidity – claim compensation for economic and non-economic loss (redress). The compensation provision in the Working Environment Act is section 15-12 second paragraph. The purpose of the provision is to place the employee economically in the position he or she would have been in if the breach of job protection had not occurred.

The assessment of compensation in cases of unlawful dismissal shall be carried out under section 15-12 second paragraph. According to the provision, compensation shall be determined at the amount the court finds “reasonable”. The Supreme Court has in Rt. 2001 p. 1253 (p. 1258) stated that the provision provides “guidance for assessment on the basis of a broad reasonableness discretion”. In the reasonableness assessment the court shall take into account the employee’s economic loss, the circumstances of both employer and employee, and the circumstances otherwise, cf. section 15-12 second paragraph second sentence.

The natural starting point for determining the compensation will always be the employee’s financial loss. If the employee has not remained in the position, practice has been to use the actual loss of salary – including likely bonus, overtime payment etc. – up to the time of the judgment. If the employee has not remained in the position under section 15-11, he or she will normally have received social security benefits or salary from another employer. The starting point is that income from other work shall not be deducted when compensation is calculated, cf. Rt. 2005 p. 518 and Rt. 2012 p. 168.

The time limit for bringing a claim for compensation as a result of unlawful dismissal follows from WEA section 17-4. If the employee only claims compensation, the limitation period for bringing an action is six months. To retain the right to compensation, it is important that this deadline is observed.

What happens after the court has declared the dismissal invalid?

When the court finds that a dismissal is invalid under the Working Environment Act, this has clear and wide-reaching consequences for the employment relationship. Under section 15-12 first paragraph a dismissal that is contrary to the statutory requirements shall be set aside, and the employment relationship shall in principle continue as if the dismissal had never taken place. Invalidity thus means that the employee is entitled to re-enter the position with immediate effect from the time of the judgment, unless the court – following a request from the employer – applies the narrow exception that allows the employment relationship to be terminated anyway if it would be clearly unreasonable to continue it.

An invalid dismissal also triggers the right to compensation under section 15-12 second paragraph. The employee may claim compensation for the financial loss caused by the dismissal, including loss of salary, lost benefits and other documented costs. The basic purpose is to place the employee in the same financial situation as if the dismissal had not occurred, within what the court finds reasonable. In addition, compensation may be awarded for non-economic loss. This redress functions as compensation for the burden and affront that an unlawful dismissal may entail, and is determined on the basis of, among other things, the nature of the dismissal, the employer’s conduct and the personal consequences for the employee.

Taken together, the rules mean that invalidity not only restores the employment relationship, but also provides the employee with both economic and non-economic protection. Job protection under the Working Environment Act is therefore not merely formal but is linked to real and practical rights that take effect if the employer acts contrary to the statutory requirements.

Exceptions – when will you not be allowed to return?

The Working Environment Act is based on strong job protection, and the main rule in section 15-12 first paragraph is clear. It states that if a dismissal is contrary to the statutory requirements, it shall be declared invalid and the employee has the right to continue in the position, cf. Ot.prp. nr. 41 (1975–1976) p. 75. This in principle entails automatic reinstatement if the dismissal is unlawful.

However, the provision opens for a narrow exception in section 15-12 first paragraph second sentence:

“In special cases the court may, at the request of the employer, decide that the employment shall terminate if, after weighing the interests of the parties, it finds that it would be clearly unreasonable for the employment to continue.”

If the employer wishes to rely on this exception, an explicit claim must be made that the employment relationship should end even though the dismissal is considered invalid. Case law shows that the threshold for applying the exception is high, cf. Rt. 1988 p. 959 (the “Barkeeper” judgment). The provision is reserved for situations where it appears clearly unreasonable to continue the employment relationship.

The balancing of interests shall be based on the circumstances as they are at the time of the judgment, cf. Rt. 2009 p. 685 paragraph 74. Relevant factors in the assessment include:

• whether the conflict between the parties is greater than normal in dismissal cases,

• the degree of blame on both sides,

• whether the employee has been out of the position and, if so, for how long,

• type of position,

• the company’s financial situation and the employee’s situation and prospects in the labour market.

Examples of unlawful dismissal from case law

In a Supreme Court judgment (HR-2021-605-A), the dismissal of a waiter was declared invalid. A waiter employed on probation had been dismissed for lack of reliability because he had not disclosed that he had previously been summarily dismissed by an earlier employer. The earlier summary dismissal had, however, already been set aside as invalid by the district court. The Supreme Court concluded that the dismissal in the present case was invalid. Even though the threshold for dismissal during a probationary period is somewhat lower, an employer cannot dismiss an employee on the basis of previous sanctions or conflicts that have already been held invalid. The case is relevant because it illustrates that a dismissal may be found invalid if it is based on circumstances that have been disproved or declared invalid.

Another example is the Supreme Court’s decision HR-2018-1189-A. In this case an employee was dismissed while pregnant and on maternity leave. She claimed that the real reason for the dismissal was her pregnancy, and that a consultation meeting under section 15-1 of the Working Environment Act had not been held. The Supreme Court found that the dismissal was invalid because it was not more likely than not that the dismissal was due to downsizing, as the company had argued. The case is important as it shows the strict requirement of just cause for dismissal during leave, as well as the employer’s duty to carry out the procedures prescribed by law.

Practical advice for employees

• Do not wait too long – there is an eight-week time limit for bringing legal action regarding invalid dismissal.

• Document everything – e-mails, meetings, warnings, feedback.

• Obtain legal advice – to assess the lawfulness of the dismissal and the possibility of reinstatement.

• Do not sign a severance agreement before getting advice – this may prevent you from getting your job back.

• Be prepared for the process to take time – and consider whether you want to remain in the position while the case is ongoing.

Practical advice for employers

• Keep documentation in order – record warnings, meetings and evaluations.

• Hold a consultation meeting under section 15-1 – before issuing a written notice of dismissal.

• Always consider alternatives – can the employee be reassigned?

• Ensure a written justification – and that it can be substantiated.

• Be realistic – and consider amicable solutions where the level of conflict is high.

Also read

Employee Rights in Case of Termination

Contact us with questions about unlawful dismissal

It is free of charge to contact Advokatfirmaet Verito AS for an assessment of whether you are entitled to get your job back after an unlawful dismissal. We assist both employees and employers with advice, negotiation and legal representation. Get in touch with us today for a non-binding assessment of your case. You can contact us by e-mail at post@verito.no or by phone 24 02 21 20.

The article was written on 11.12.2025

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Sources

Supreme Court case law: https://lovdata.no/avgjorelse/hr-2019-928-a, HR-2021-605-A, HR-2018-1189-A
Working Environment Act
Ot.prp. nr. 41 (1975–1976)