Can those on sick leave demand that the employer divide the full-time position into two part-time positions?

On 17 February 2022, the first judgment in a long time came from the Supreme Court on the subject of the employer's dismissal of and duty to facilitate towards employee on sick leave. The ruling provides several clarifications of importance that employers should take into consideration in the follow up of sickness absence.

1 What had happened?

The employee in the case had been employed by the employer for 18 years, and he had been on full or partial sick leave for long periods during the last ten years. The employer and NAV had followed him up throughout the sick leave period.

Both employer and employee had a common goal that the employee should return to his full-time position. An activity plan was therefore made which facilitated a gradual escalation to a full-time position, and where a substitute covered the remaining part of the position.

In 2019, it became clear that the employee could not or did not want to step up more than the 50% he then worked. He wanted to continue in a permanent 50% part-time position where others filled the remaining 50%. The employer believed that it was unfortunate to have a permanent part-time position of the type the employee held.

The other positions of the same type were all full-time positions. The employer did not want to divide his full-time position into two permanent 50% positions. A dismissal process was therefore initiated, which ended with the employee being dismissed from the entire position. The employee filed a lawsuit and believed that the dismissal was not legal.

2 As far as possible, but not infinitely

A dismissal must be objectively justified in the employee's circumstances in accordance with the Working Environment Act § 15-7. In this case, it was the employee's reduced ability to work due to illness that was the reason for dismissal. The Supreme Court held that it would be central to the legality of the dismissal whether the employer had fulfilled its statutory duty to facilitate in the Working Environment Act § 4-6.

According to this provision, the employer must “as far as possible, implement the necessary measures to enable the employee to retain or be given suitable work. The employee shall preferably be given the opportunity to continue his normal work, possibly after special adaption  of the work or working hours, alteration of work equipment, work oriented measures or the like.”

The Supreme Court pointed out that the duty to facilitate towards the employee extends far, and that it can include measures that are financially burdensome and resource-intensive for the employer. For example, reducing the working hours of the employee and at the same time hiring a substitute. At the same time, it does not go so far as to require the employer to create a new position for the employee.

The employer does not have to carry out everything that is theoretically possible in order to fulfill the duty to facilitate. If a measure causes significant problems for the employer, it is not certain that the employer is obliged to implement the measure. This will depend on a specific discretionary overall assessment in each individual case. In this case, the employer believed that they should not divide the position into two part-time positions.

In assessing whether the duty to facilitate towards the employee requires the employer to implement changes in the organizational and position structure, it will be important whether the measure is of a short-term or long-term nature, whether the organizational and position structure already involves the use of part-time positions and whether the employer in any way needs a new position which can fit.

The Supreme Court held that there must be compelling reasons why the employer may be obliged to implement permanent changes in the organizational and position structure.

In this case, the Supreme Court concluded that the duty of facilitation did not require the employer to implement a permanent change in the position and organizational structure by dividing a full-time position into two permanent part-time positions. In this case, the employer had managed to document the problems that such a division would entail.

3 Statements by litigant party- and witnesses about facilitation measure problems

The employee claimed that the employer, at the time of dismissal, had to document the problems that they believed a conversion to a permanent part-time position would entail. He believed that these problems could not be further elaborated in the trial through statements by litigant party- and witness statements from the employer side.

The Supreme Court did not agree with this. The court nevertheless believed that the employer could have documented the problems earlier, i.e., during the dismissal process. Employers should therefore remember to document in writing all the elements of a dismissal assessment before the dismissal is given to the employee.

4 What can we take with us next?

The judgment shows that the employer's duty to facilitate towards the employee on sick leave extends far, but that there is a limit. Where that limit is depends on the circumstances of the individual case.

The duty to facilitate can, among other things, involve reducing working hours and hiring a temporary worker. It may also include both temporary and permanent organizational and job structure changes.

All facilitation measures and all the assessments that the employer makes must be documented, including the problems that a given facilitation measure will have for the company and the employer's assessment of these.