In addition to the general requirement for a legitimate reason for dismissal, the Working Environment Act provides special dismissal protection in certain situations. This protection is particularly relevant in cases of sick leave, pregnancy, leave in connection with childbirth or adoption, and military service. Common to these situations is that the employee is in a vulnerable position where extra protection is necessary.

Dismissal protection during sick leave

An employee who is completely or partially absent from work due to an accident or illness cannot be dismissed for that reason during the first twelve months after the incapacity arose, cf. the Working Environment Act § 15-8(1). This represents an absolute prohibition on dismissal during the protection period.

Key elements of this protection are:

Conditions for protection

• The employee must be incapacitated due to an accident or illness

• The employee must notify the employer of the reason for the absence within a reasonable time, by doctor's certificate or self-declaration

• The protection period runs for 12 months from the first self-declaration or sick leave notice

Evidence rule

A dismissal that takes place during the protection period is presumed to be due to the sick leave unless something else is made overwhelmingly probable, cf. § 15-8(2). This means that the employer has the burden of proof that the dismissal is justified by other reasons.

The Supreme Court has clarified that "overwhelmingly probable" should be understood as a requirement for clear probability preponderance that the dismissal is due to something else. It is not sufficient to point out reasons that, together with the sick leave, might provide grounds for dismissal. There "must be circumstances that independently of the sick leave provide legitimate grounds for dismissal."

After the protection period

Once the protection period has expired, the sick leave may, in principle, constitute a legitimate reason for dismissal. Three key themes are central in this assessment:

1. Whether the employer has fulfilled its duty to make accommodations

2. The illness prognosis and prospects for improvement

3. A reasonableness assessment weighing the employer's need to end the employment relationship against the consequences for the employee

Dismissal protection during pregnancy

An employee who is pregnant cannot be dismissed for that reason, cf. the Working Environment Act § 15-9(1). The provision has the same structure as § 15-8, with an absolute prohibition against dismissal justified by pregnancy.

The same evidence rule applies as for sick leave: a dismissal that takes place while the employee is pregnant is presumed to be due to the pregnancy unless something else is made overwhelmingly probable.

In HR-2018-1189-A (Pregnancy), the Supreme Court emphasized that so-called immediate evidence – that is, contemporaneous documentation – will be of particular importance in assessing whether the dismissal is due to factors other than pregnancy.

Dismissal protection during parental leave, etc.

An employee on leave in connection with childbirth or adoption cannot be dismissed with effect during the absence period when the employer is aware that the absence is due to leave, cf. the Working Environment Act § 15-9(2).

This applies to the following types of leave:

• Maternity leave (§ 12-2)

• Parental leave (§ 12-3)

• Paternity leave (§ 12-4)

• Parental leave for one year (§ 12-5(1))

If the employee is lawfully dismissed to leave at a time that falls within this period, the dismissal period is extended by a corresponding period. The provision means that the effect of the dismissal is suspended during the leave period.

For employees with extended parental leave beyond one year, equivalent dismissal protection and evidence rules apply as for pregnancy, cf. § 15-9(3).

Dismissal protection during military service, etc.

An employee cannot be dismissed due to leave for mandatory or voluntary military service or similar general public service, cf. the Working Environment Act § 15-10(1). This also applies to voluntary service of up to 24 months' duration in forces organized by Norwegian authorities for participation in peace operations.

The same evidence rule as for sick leave and pregnancy also applies here, cf. § 15-10(3).

Common features of the special dismissal protection

Common to all these types of special dismissal protection is that:

1. There is an absolute protection against dismissal justified by the relevant circumstances

2. It applies a strict evidence rule that places the burden of proof on the employer

3. The protection does not prevent dismissal justified by other circumstances, provided the employer can prove this with clear probability preponderance

The special dismissal protection strengthens job security for employees in vulnerable situations and helps to realize the Working Environment Act's purpose of an inclusive working life.

Age limits in labor law: The 72-year rule and exceptions

Blurb: The Working Environment Act sets a general age limit for job security at 72 years. Lower age limits can be set under certain conditions, but age limits constitute direct discrimination and must be compatible with anti-discrimination rules. Recent case law and legal changes have tightened the ability to set lower age limits.

The Working Environment Act's 72-year rule

The possibility of terminating employment due to age is regulated in the Working Environment Act § 15-13a. The provision contains several key elements:

• A general age limit for job security at 72 years

• Rules on the ability to set lower age limits

• Procedural rules at termination due to age

Main rule: The 72-year limit

The Working Environment Act § 15-13a(1) stipulates that an employer can terminate the employment relationship when the employee reaches 72 years, without the job security rules being applicable. This is often referred to as the 72-year rule.

The main justification for this general age limit is to facilitate a dignified departure from working life. The idea is to spare the employee from being dismissed because they no longer perform as required and to spare all parties the conflicts and disruptive lawsuits such dismissals might entail.

The age limit was raised from 70 to 72 years effective April 24, 2015. This was meant as a measure to give those who wish to continue working the opportunity to do so. A higher limit also better aligns with new rules on accrual of retirement pensions.

The 72-year rule provides an option, but no obligation, for the employer to terminate the employment relationship. If the employer does not exercise the option, the employment relationship will continue to run even after the employee has turned 72.

The ability to set lower age limits

The Working Environment Act § 15-13a(2) to (4) allows for the establishment of a lower age limit than 72 years on other grounds if certain conditions are met. Other grounds can be an agreement (collective agreement or individual agreement) or the employer's unilateral determination by virtue of managerial prerogative.

Main rule for lower age limits

The main rule according to § 15-13a(3) is that a lower age limit cannot be set below 70 years. In addition, the following conditions must be met:

1. The limit must be made known to employees

2. It must be practiced consistently by the employer

3. The employee must have the right to a satisfactory occupational pension scheme

The second paragraph of § 15-13a is a "safety valve" that allows lower limits than 70 years if necessary for health or safety reasons.

Relation to anti-discrimination rules

In both cases, it is required that the limit is in line with the ability to discriminate based on age according to the EU framework directive, cf. § 15-13a(4).

Linking the ability to terminate an employment relationship to a specific age constitutes direct discrimination and is in principle prohibited. Legal age limits must therefore be justified by legitimate objectives and be appropriate and necessary.

Traditionally, internal company age limits have been accepted in Norwegian law, but recent case law and legislative changes have significantly tightened the ability to set lower limits.

Case law on age limits

Case law from the Supreme Court and the EU Court of Justice has greatly influenced the development of rules on age limits:

Rt. 2011 p. 964 Gjensidige

Here, the Supreme Court accepted a company's internal age limit of 67 years. It was emphasized that the limit served legitimate social policy purposes, particularly considerations of workforce distribution between generations, predictability, and employees' desire to retire. Due to later case law and legal tightening, the ruling is no longer reflective of current law.

Rt. 2012 p. 219 Helicopter Pilots I

The Supreme Court set aside a collective agreement age limit of 60 years for helicopter pilots. The court found that considerations of flight safety could not justify a lower age limit than what was required by certification rules (65 years). Other cited considerations, such as dignified retirement and promotion opportunities for younger pilots, were also insufficient to make the limit necessary and proportionate.

Special age limits in the public sector

Special age limits for certain occupational groups in the public sector have existed since the 1950s and 60s. With a legal amendment in 2021, the obligation to retire at such special age limits was removed, partly based on the protection against age discrimination. The obligation to retire now applies at 70 years instead. However, pension rights remain intact.

Procedural rules for termination due to age

Upon termination of employment according to § 15-13a, special procedural rules apply, not the general rules for termination:

• The employer must give written notice and can demand resignation no earlier than six months after the first day of the month following the notice being received by the employee

• As far as possible, and before giving notice, the employer must invite the employee to a meeting

• Where the employee wishes to resign, the notice period is one month, and the notice does not need to be in writing

The employee does not have the right to continue in the position while a dispute is ongoing.

Summary

The rules on age limits in labor law have undergone significant changes in recent years, particularly with raising the general age limit to 72 years and tightening the ability to set lower limits. The development reflects the desire for employees to work longer, while also maintaining dignity in employment departure. All age limits must be compatible with protection against age discrimination.