No time off from night work

In a recent judgement, the Supreme Court ruled that an offshore worker was not entitled to exemption from night work, despite health-related conditions that required it.

The Working Environment Act gives employees who regularly work at night the right to an exemption if they need it for health, social or other important welfare reasons, and the exemption can be implemented without significant inconvenience to the company, cf. section 10-2 second paragraph of the Working Environment Act. The dispute before the Supreme Court was whether the exemption for this employee constituted a "significant disadvantage for the organisation".

Exemption in the same position

In the case, the company had offered the employee day work in another position on land, but the employee demanded to continue in the same position - without night work.

A majority of the Supreme Court clarifies that the right to exemption applies first and foremost to the same position the employee already holds. The minority of one judge held that an offer of other suitable work also fulfils the employer's obligations.

Significant disadvantage for the organisation

When it comes to assessing what constitutes "a significant disadvantage for the organisation", the Supreme Court pointed out that serious and life-threatening health problems for the employee meant a higher threshold for what constitutes a significant disadvantage.

In this specific case, the Supreme Court emphasised the following factors:

• The employee's health situation: the employee had suffered a heart attack, and it was documented that night work would increase the risk of cardiovascular disease and death.
• The employer's situation:
  • The organisation's need for flexibility and ability to carry out work assignments when the clients needed them. Among other things, it was emphasised that progress plans, execution of assignments and logistics were discussed daily.
  • The composition of work teams and the number of employees available for allocation were also important.
  • Consideration for other employees was also emphasised. Many wanted to avoid night shifts and the company wanted to avoid overtime.
• It was important that the employee had declined an offer of another position.

Take aways from the judgement:

• In the first instance, exemption should be made in the same position. Then other suitable work must be considered. However, the fact that such work has been offered is a key element in the assessment of disadvantage.
• Serious health problems entail a high threshold for what constitutes significant disadvantage for the employer.
• The assessment of disadvantage is based on a specific assessment where the organisation's disadvantages, beyond what will almost always occur, can also be taken into account.