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15 August 2018
The Supreme Court recently ruled in a case in which an employee had challenged the lawfulness of a warning issued by their employer. Prior to this case, Norwegian lawyers had generally been of the view that warnings were part of an employer's right of management and that the courts would not try cases challenging such warnings as they have no actual consequence.
The employee was a chief officer in a Norwegian shipping company who, at the time of receiving the warning, occasionally acted as a captain. After receiving the warning, he was no longer given the opportunity to act as a captain.
The employee claimed that the warning had been issued in retaliation to his whistleblowing. He petitioned the courts for compensation and the withdrawal of the warning. The key question in the case was whether the Supreme Court would accept an isolated claim for the withdrawal of the warning.
The Supreme Court pointed out that this question had never been considered. According to Section 1-3 of the Dispute Act, actions that are brought before the court must be "legal claims" and the "claimant must show a genuine need to have the claim determined against the defendant". This is determined based on a "broad assessment of the relevance of the claim and the parties' connection to the claim". For an action to be a 'legal claim' it must be governed by legal rules.
The Supreme Court stated that although no rules explicitly regulate warnings, case law stipulates that they may have an effect when assessing whether a termination is objectively justified. Further, the Supreme Court stated that according to case law, an employee can challenge the validity of their employer's decisions in accordance with the employer's right of management. Based on this case law, the Supreme Court concluded that an employee's claim to withdraw a warning can be considered a legal claim. The Supreme Court made exceptions for cases where the employee is given less serious feedback and stated that employees must take legal action in a timely manner after receiving a warning.
After concluding that the claim for withdrawal was a legal claim, the court considered whether the employee had "a genuine need to have the claim determined". The common view among Norwegian lawyers has been that employees will generally not need to have a warning considered by the courts, as warnings have no direct consequences for employees.
However, the Supreme Court saw differently in this case. It stated that although warnings normally have only an immediate effect for employees, they are important with regard to a possible termination in future. The Supreme Court subsequently assessed the significance of the warning in the case at hand for the chief officer. It pointed out that the warning had had an immediate effect his working conditions, as he was no longer given the opportunity to act as a captain and therefore suffered an economic loss. The Supreme Court therefore concluded that the employee had "a genuine need to have the claim determined".
The Supreme Court's ruling states that employees may challenge the lawfulness of a warning that they receive from their employer in the courts. However, it is unclear whether:
Although the ruling has given rise to the question of when employees will have a legal interest to challenge warnings before the courts, it infers that in cases where the employee can show that the warning is likely to affect their working conditions, the courts are likely to accept the claim.
Conversely, if it is unlikely that a warning will have any consequences for the employee, the court may conclude that the employee has no "genuine need to have the claim determined".
Following this ruling, Norwegian employers should take care to document that they have followed an objectively justified procedure before issuing a warning to an employee.
For further information on this topic please contact Ole Kristian Olsby at Homble Olsby Advokatfirma AS by telephone (+47 23 89 75 70) or email (firstname.lastname@example.org). The Homble Olsby Advokatfirma website can be accessed at www.homble-olsby.no.
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