This summary of age discrimination law in Norway has been prepared by Hjort, the Ius Laboris member for Norway: www.hjort.no.
In accordance with the Working Environment Act section 13-1 (1), direct and indirect discrimination on the basis of political views, membership of a trade union or age is prohibited. Harassment and instructing another to discriminate is also regarded as discrimination.
The provisions of chapter 13 in the Working Environment Act apply to all aspects of employment, from appointment to termination of employment.
The prohibition against age discrimination implements Directive 2000/78/EC, and national case law regarding age discrimination is to a large extent based on an interpretation of the Directive and EU case law.
In addition, age discrimination is also prohibited by a new Equality and Discrimination Act of January 1st 2018. Age discrimination in the workplace is however governed by the provisions of the Working Environment Act.
Exceptions from the prohibition against discrimination
Discrimination that has a just cause, that does not involve disproportionate intervention in relation to the person or persons so treated and that is necessary for the performance of work or profession, shall not be regarded as discrimination pursuant to the Working Environment Act section 13-3 (1).
Discrimination that is necessary to achieve a just cause and does not involve disproportionate intervention in relation to the person or persons so treated, is not in contravention of the prohibition against indirect discrimination, discrimination on the basis of age or discrimination against an employee who works part-time or on a temporary basis, cf. section 13-3 (2).
The difference between the first and second paragraph is that the necessity condition in the first paragraph is related to the performance of work or profession, while this is not a requirement according to the second paragraph. This means that several considerations may justify discrimination according to the second paragraph.
In accordance with section 13-6 special treatment that helps to promote equality of treatment is not in contravention with the prohibition against discrimination, provided that it ceases as soon as its purpose has been achieved.
The provisions of the Working Environment Act chapter 13 apply to all employees, as well as an employer’s selection and treatment of self-employed persons and contract workers. Further, it is of no consequence whether an employee works part-time or on a temporary basis.
WHAT ENFORCEMENT/REMEDIES EXIST?
Criminal sanctions are possible in cases involving age discrimination (but are highly unlikely). In accordance with section 19-1, an employer who wilfully or negligently breaches the provisions in the Working Environment Act or orders contained in or issued pursuant to this Act shall be liable to a fine, imprisonment for up to three months, or both. In the event of particularly aggravating circumstances, the penalty may be up to two years imprisonment.
Age discrimination claims are usually heard in the civil courts. In accordance with section 13-9, anyone who has been discriminated against may require compensation regardless of whether the employer can be blamed for the discrimination. The compensation covers economic losses caused by discrimination. Damage for non-economic loss shall be fixed at an amount that is reasonable in view of the extent and type of the damage, the circumstances of the parties and other facts of the case. The level of such compensation is in general relatively low in Norway, in comparison with other jurisdictions.
The reversal of the burden of proof applies in Norway according to section 13-8. This means that if the employee or job applicant submits information that gives reason to believe that discrimination has taken place in contravention of the provisions of this chapter, the employer must substantiate that such discrimination has not occurred.
In Norway, the Equality and Anti-Discrimination Tribunal operates after a complaint has been made. The Tribunal can in some cases impose daily penalties on a party if adjustments are not made in accordance with the Tribunals’ decision. The Tribunal may also make orders to pay compensation for breach of the prohibition on discrimination. The Anti- discrimination Ombudsman used to be able to make decisions. However, effective from 1 January 2018, the Ombudsman can only provide guidance and will work politically.
HOW COMMON ARE CLAIMS?
There has been little focus on age discrimination in Norway compared with other forms of discrimination law. That said, in recent years we have seen growing attention to age discrimination and a rise in such claims and case law.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
In Norway, age discrimination is most common in recruitment. Employees who have reached a certain age are often neglected in recruitment, but discrimination is difficult to prove. Claims regarding job advertisements are fairly common.
We have seen a growing number of claims of age discrimination in termination of employment and retirement age. Since 2010, the Supreme Court has passed judgment in five cases where claims of age discrimination were made (reference below, under “Interesting cases”).
For employers, we believe the trickiest issue will be to have intergenerational diversity amongst a workforce, without giving grounds for claims for age discrimination. Rapid technological development and changes could motivate an employer to replace older employees. This combined with new regulations regarding pension rights that reward employees with long service, gives conflicting interests between employers and employees.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?
There are exceptions from the prohibition against age discrimination, as mentioned above, including legislation that sets out different retirement ages for certain groups of employees, ref below.
From 1 July 2015 the age limit in the Working Environment Act section 15-13a is raised from 70 to 72. This provision does not require the employee to resign, and it is therefore not a maximum age limit. It is only a right for the employer to terminate the employment contract without an objectively justifiable reason. If the employee continues to work after the age of 72, he/she will not have employment protection rights as the ordinary rules for termination of employment does not apply.
A lower age limit may be stipulated if it is necessary for health and security reasons.
A lower age limit may be stipulated if the limit is made known to the employees, it is practised consistently and the employee has the right a satisfactory occupational pension. The employer must discuss a lower age limit with the employees’ elected representatives. From 1 July 2015 such an age limit cannot be below 70, where it was earlier usually 67 years.
Generally, a lower age limit must be objectively justified and must not involve disproportionate intervention, cf. section 13-3 (2), mentioned above.
According to section 15-13a the employer has an obligation to call for a meeting with the employee before terminating the employment of an employee reaching the age limit. An employer must give an employee six months prior written notice. An employee’s resignation because he/she reaches the age limit has a resignation period of one month, and the resignation notice does not have to be in writing.
In the public sector, the main age limit is 70 years according to the Age Limit Act for Public Officers section 2 and the Regulations on Pension Schemes for Municipal and County Employees section 1. A lower age limit may be determined if the work requires an unusual physical or mental strain on the officers, or the work requires special physical or mental qualities. The lower age limits may be 68, 65, 63 or 60 years. As opposed to the Working Environment Act, these provisions require the employee to resign from his/her position. It is therefore a maximum age limit.
The rules on age limits in the public sector have not been amended. The Norwegian Parliament has however asked the Government to consider how these rules can be amended in order to harmonise the rules in the private and public sector.
There are a number of collective agreements with different age limits depending on the profession, A lower age limit than the applicable law, may be stipulated in a collective agreement as long as the age limit is not in violation of the rules and principles regarding age discrimination.
The Supreme Court has decided in five cases regarding age discrimination (with reference given to the date and publication data):
18th February 2010 in Rt. 2010 s. 202 (Kystlink)
A seaman was dismissed because he was more than 62 years old. The age limit pursuant to the Seamen’s Act was 62 years, if the seaman has obtained full pension rights. The seaman argued that the age limit in the Seamen’s Act was in defiance with Directive 2000/78/EC. The Supreme Court upheld the dismissal. The legislator’s reason for the age limit in the Seamen’s Act was health and security considerations, which were objectively justified in the sense of the Directive. As the seaman was entitled to pension, age limit was not disproportionate. The Supreme Court (three judges with two dissenting votes) found that the regulation was within the margin of appreciation.
May 5th, 2011 in Rt. 2011 s. 609 (SAS Norge AS):
In order to reduce the number of employed pilots, Scandinavian Airline Systems (SAS) terminated the employment of ten pilots despite their long seniority, because they had reached the pension age of 60. However, the international age limit for pilots was 65. The Supreme Court upheld the dismissals. The employer had to reduce the work force, and it was objectively justified and not disproportionate to dismiss pilots who were entitled to pension. The assessment was probably influenced by the fact that the pilots’ pensions provided by the SAS were favourable. In our view, the outcome would not necessarily have been the same if the employees were entitled to a minimum pension. Interestingly, the Swedish Labour Court, who heard the identical case regarding SAS Swedish pilots, found the dismissals unjustified. (Attorney at Law/Partner Alex Borch of Advokatfirmaet Hjort represented the pilots in the Norwegian case.)
June 29th, 2011 in Rt. 2011 s. 964 (Gjensidige):
An insurance company employee received notice because she reached the insurance company’s age limit of 67, and she claimed that the notice was invalid as age discrimination. The Supreme Court upheld the dismissal. The age limit of 67 had been consistently practised by the employer, the employees were familiar with the lower age limit, and the employee was entitled to an good occupational pension. The Court held that this was in consistence with the EU Directive 200/48/EC.
February 14th, 2012 in Rt. 2012 s. 219 (CHC Helicopter Service):
In accordance with the collective agreement between the Pilots’ Union and the Employer’s Federation and employer (CHC Helicopter Service AS), the agreed pension and retirement age was 60. The age limit for helicopter pilots was 65, and ten pilots who were denied the right to work untill they reached the age limit, claimed that this was illegal age discrimination. In accordance with the Prigge-case (C447/09) of September 13th 2011, the Court held that health and security considerations did not justify a retirement age agreed in collective agreement that was lower that the age limit in accordance with international aviation law.
March 15th, 2012 in Rt. 2012 s. 424 (NAV Smøla):
A 61-year old social worker was not called in for a job interview when applying for a position in the public Norwegian Labour and Welfare Organisation (“NAV”). As the four applicants who were interviewed were between 28 and 50 years old, the 61-year old claimed he had been victim of age discrimination. NAV did not contest that the social worker should have been interviewed, as he was the best qualified applicant, but this was not consequence of age discrimination, but a need to hire a new employee with other qualifications, in order to strengthen the local office in other areas. The courts found sufficient evidence for this to be the case, and ruled in favour of NAV.