The Supreme Court clarifies the scope of the “particularly independent position” exemption

In a new judgment, the Norwegian Supreme Court has ruled on where the line is to be drawn for a “particularly independent position”. More than 10 % of Norwegian employees hold such a position and are therefore exempt from the provisions of the Working Environment Act on working hours, overtime and overtime pay. There has previously been little case law on this issue of considerable practical importance. The Supreme Court’s judgment therefore provides valuable guidance on where the line is drawn.

The case concerned a claim for overtime pay brought by a former project manager at a construction company. The employment contract did not expressly state that the position was to be regarded as particularly independent. “Normal working hours” were set at 07:00 to 15:00, with overtime pay included in the salary. In practice, the employer did not interfere with where and when the employee worked, and the employee did not record his hours. The “timesheets” in the case were taken from a diary the employee kept monitoring progress on the projects. However, the start and finish times of his work were not recorded.

The Supreme Court concluded that the employee did not hold a particularly independent position under section 10-12 (2) of the Working Environment Act.

The judgment contains general statements on how the requirement of a particularly independent position is to be understood. The Supreme Court emphasises that the provision is a narrow exception, and that the key question in the overall assessment is whether the position entails that the employee decides themselves what is to be done and what is to be delegated, how the work is to be done, and when it is to be done.

With reference to the Working Time Directive and the case law of the Court of Justice of the European Union, the Supreme Court specifies that it is not sufficient that the employee decides at what time of day he works, or that he himself monitors whether his work obligations are fulfilled.

An important clarification in the judgment concerns which limits are relevant to the assessment. The employer argued that only internal limits, i.e. the limits set by the employer for the employee, should be taken into account. The Supreme Court disagreed. External limits to which the business is subject, such as deadlines and requirements set by public authorities or customers, will also be relevant. The assessment must take all limits into account, since it is the employee’s actual control over his own working time that is to be assessed.

On the basis of these legal principles, the Supreme Court concluded that the employee did not hold a particularly independent position. Admittedly, the employee was able to manage the tasks in the projects himself and had considerable freedom as to how the work was to be performed. The District Court and the Court of Appeal had attached significant weight to this. The Supreme Court found that greater weight had to be given to the employee’s ability to determine his own working time, both in terms of workload and when the work was to be performed. The employee had limited control over his own workload, nor was he free to decide when the work was to be carried out.