New Decision from the Court of Appeal Regarding the Possibility to Deprive Employees of their Duties within the Period of Notice
Simonsen Vogt Wiig Press
In LG-2018-161055 the Court of appeal, in a case regarding preliminary action, gave an elaborated assessment regarding under what conditions an employer can deprive an employee of his or her duties in the notice period.
An employer only exceptionally has the right to deprive a dismissed employee of his or her duties within the period of notice. For this to be possible, there must be "particularly compelling reasons".
In this case, two case managers were dismissed and instructed to resign immediately. They were thus not given the opportunity to work during the notice period. The District Court concluded that the two employees had the right to work during the notice period. The employer appealed the case to the Court of Appeal, which concluded that the employer no longer had legal interest in having the case tried against employee A. The question regarding the right to work in the notice period was therefore only tried for employee B.
The basic principle is that the employee has the right to perform work duties during the notice period
The Court of Appeal initially points out that the basic principle is that a dismissed employee has the right to perform work duties during the notice period. Only in exceptional cases can an employer deprive an employee of work duties in the notice period, and it can only be done if there exists "particularly compelling reasons" for the employee to be deprived of the duties. This has already been established in the previous Supreme Court judgement (cf. HR-2009-1883-U).
What will constitute "particularly compelling reasons"?
The Court of Appeal stated that the demand for "particularly compelling reasons" to deprive an employee of work duties in the notice period is a strict criterion. The Court of Appeal further states that relevant factors in the assessment will be the probable outcome of the dismissal case, possible alternative placement or work duties for the employee, the financial burden for the employer, consequences for other employees and whether the employer's case management has been satisfactory.
Particularly about the possibility to deprive an employee of work duties within the notice period because of cooperation and work environment problems
This specific case concerned the question of whether the employer could deprive an employee of her work duties because of her role in a work environment conflict at the workplace. The employer stated that, because of the work environment conflict, the employer had no choice but to deprive the employee of her work duties in the notice period. The Court of Appeal remarked that:
The Court of Appeal remarks that the District Court has considered that B has been a contributor to a work environment conflict that has been going on over time, and where the management has been one fraction and the Delta-organized employees have been the other fraction. The District Court has considered that the situation has been locked in for many years, and has expressed a certain understanding the fact that the dismissals have been a step in trying to resolve the situation in the absence of other satisfactory alternatives. However, the District Court has not found that B has had a more conflict-creating role than other employees in this case, nor has it found reason to identify B with the actions and statements made from Delta-organized employees.
Because employee B could not be considered to be blamed for the conflict, or to have a significantly more conflict-creating role in the work environment conflict than the other employees, the Court of appeal concluded that the demand for "particularly compelling reasons" was not fulfilled.
The question regarding an employer's possibility of depriving an employee of work duties during the period of notice is from experience, a question that often arise in dismissal cases. The decision clarifies the factors that will be important when assessing whether the demand for "particularly compelling reasons" is fulfilled, and thus provides a more concrete guidance to the assessments an employer must do in the cases where this question is raised.
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