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It follows from the Working Environment Act Section 15-8 that if one is completely or partially absent from work due to an accident or illness, one cannot be dismissed for that reason during the first 12 months after the illness or accident occurred. This means that the dismissal shall be set aside as unfair if the employer cannot prove that it is predominantly likely that the dismissal has a reason other than the illness.
Factual reason
After 12 months have passed, however, it will be legal for the employer to dismiss the employee on the grounds of illness. The dismissal must nevertheless meet the objective requirement in Section 15-7 of the Working Environment Act. For the dismissal to be objective, the employer must at least have fulfilled the obligation to provide accommodation pursuant to Section 4-6 of the Working Environment Act. Furthermore, it will be important whether the employee can document that work can be resumed within a reasonable time, either as normal or with accommodation. In assessing whether the dismissal is objectively justified, there is also a requirement for proper case processing and a balancing of interests between the employer's and the employee's needs must have been made.
Reduced work capacity
It follows from the Working Environment Act, Section 4-6, that if an employee has reduced working capacity as a result of accident, illness, wear and tear or similar, the employer must "as far as possible" implement necessary measures to enable the employee to retain or obtain suitable work.
Typical measures may include adaptation of work tasks, work equipment, arrangement of working hours or reduced vacancy rates. Preferably, the adaptation should be done so that the employee can continue in his/her usual work, but if this is not possible, the employer should consider whether it is possible to reassign the employee to another position in the company.
Concrete boundaries
The fact that the employer must facilitate "as far as possible" indicates that the obligation to facilitate is extensive. However, a specific overall assessment must be made in which the size, nature and finances of the business must be considered in relation to the employee's circumstances.
Some specific limits have been drawn for the duty to accommodate. The employer is not obliged to go so far as to create a new position in the company. Reassignment will therefore be relevant if there is a vacant position for which the employee is suitable. Furthermore, it has been established in case law that the duty to accommodate an employee should not be at the expense of the employer's obligations towards other employees, for example by transferring them or requiring them to change jobs.
The Widerøe case
A new judgment was handed down in the Supreme Court on 16 February 2022 (HR-2022-290-A) where the Supreme Court considered the scope of the employer's accommodation obligation. The case concerned the dismissal of an employee whose working capacity had been permanently reduced by 50 percent. The question was whether the employer's accommodation obligation included an obligation to offer a permanent reduction to half the position, so that they also had to hire a new person to fill the remaining part of the position. This would result in the position being filled by two part-time employees instead of one full-time employee.
The Supreme Court did not rule out that this could be a relevant accommodation measure. In this case, however, the Supreme Court concluded that the employer had fulfilled its accommodation obligation, even though they did not offer the employee permanent accommodation in a half-time position. The dismissal was therefore objective. The Supreme Court stated regarding the accommodation obligation in this case that "there must be weighty reasons before Section 4-6 of the Working Environment Act entails an obligation for the employer to make permanent changes to the organizational and position structure in the company".
This may indicate that it may become more difficult in the future to achieve a demand for a permanently reduced position as an accommodation measure. This will be particularly the case in cases where it is not already part of the company's position structure to use part-time positions.
Right to part-time
It follows from the Bus Industry Agreement § 2.2.2 (4) that part-time positions shall be offered to employees who, according to the provisions of the Working Environment Act, are entitled to a reduced position. We believe that this provision will entail a stronger right to a reduced position as a facilitation measure for employees covered by the BBA than what can be deduced from the new decision. In the recent decision from the Supreme Court, there was no similar collective agreement provision that regulated the employment relationship.
