Hjort
Overview
Under Norwegian legislation, there are three Acts that solely regulate discrimination: the Gender Equality Act of 1978, the Anti-Discrimination Act of 2005 (ethnic origin, language etc) and the Discrimination and Accessibility Act of 2009 (discrimination on the grounds of disability). In addition to this legislation, there are discrimination regulations in the Employment Act, chapter 13, and also in the Criminal Code.
According to the Employment Act, section 13-1 (1), direct and indirect discrimination on the basis of political views, membership of a trade union, sexual orientation, disability or age is prohibited. Harassment and instruction to discriminate persons for reasons are also regarded as discrimination.
The provisions of the Employment Act, chapter 13 apply to all aspects of employment, from advertising to termination of the employment.
There are only national laws.
Many of the discrimination provisions implement EU directives.
Exceptions from the prohibition against discrimination
According to the Employment Act, section 13-3, age discrimination may be justified in the following cases:
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When discrimination 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.
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When discrimination is necessary to the achievement of 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.
Preferential treatment
According to the Employment Act, section 13-6, preferential treatment (i.e. positive discrimination) that helps to promote equality of treatment is not in contravention of the provisions of chapter 13. Such special treatment shall cease when its purpose has been achieved.
Who's covered?
The provisions of the Employment Act, chapter 13 apply to all employees, to the employer's selection and treatment of self-employed persons and contract workers. Further, there is of no consequence whether the employee works part-time or on a temporary basis.
There are no specific limitations. Only commissioned officers and other militarily crew are excluded.
What enforcement/remedies exist?
Criminal sanctions:
According to the Employment Act, section 19-1, an employer who wilfully or negligently breaches the provisions in the Employment 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.
Civil remedies:
Claims regarding discrimination can be settled by the ordinary courts.
Compensation:
According to the Employment Act, section 13-9, anyone who has been discriminated may demand compensation without regard to the fault of the employer. The compensation shall be fixed at the amount the court deems reasonable in view of the circumstances of the parties and other facts of the case. The level of such compensation is in general relative low in Norway, in comparison with other jurisdictions such as the UK.
Compensation for financial loss because of discrimination in contravention of the Employment Act, chapter 13 may be claimed pursuant to the normal rules of compensation.
Burden of proof:
According to the Employment Act, section 13-8, the employer must substantiate that discrimination has not occurred if the employee submits information that gives reason to believe that discrimination has taken place.
Other enforcing body:
In Norway, there is an Anti-discrimination Ombudsman, which operates ex officio or on request. The Ombudsman gives statements regarding discrimination and if the statement does not lead to improvement, the case can be taken to the Norwegian Equality Tribunal The Equality Tribunal has the authority to instruct the employer to stop the discrimination. The Equality Tribunal can also give the employer a compulsory fine until the discrimination stops. The decisions of the Equality Tribunal can be taken to court.
How common are claims?
Claims regarding discrimination due to age are not very common in Norway, especially in comparison to other forms of discrimination law.
What claims are most common and what are trickiest issues for employers?
In Norway, we expect the most common claims to be in recruitment. Employees who have reached a certain age are often neglected in recruitment. Claims regarding job advertisements are also fairly common.
There are very few examples of claims due to retirement age. This is because the provisions state that a dismissal before an employee reaches 70 years of age due solely to the fact that the employee has reached retirement age is not objectively justified.
We expect it to be more common that the employer and the employee will enter into an agreement in cases where the employer wants to dismiss a employee because of his age.
Are there any specific exceptions in your laws?
There are no such exceptions in Norwegian laws, except that commissioned officers and other militarily crew are excluded, as mentioned above.
Retirement ages
The general retirement age in Norway is 67, however the employees have the right to remain in position until the age of 70 Pursuant to the Employment act, section 15-13a , dismissal before an employee reaches 70 years of age due solely to the fact that the employee has reached retirement age pursuant to the National Insurance Act shall not be deemed to be objectively justified, unless it is covered by the exceptions in section 13-3 as mentioned above. Once an employee reaches 70 years of age, employee protections under the Employment act lapse. The employer may terminate the contract with the employee for any reason. However, the employer has an obligation to call for a meeting with the employee.
An employer must give an employee six months prior written notice. If the employee terminates the contract after the age of 70 he/she has an obligation to give the employer just one calendar month prior notice.
Interesting cases
The provisions regarding age discrimination under Norwegian legislation are relatively new. There is one case regarding age discrimination that shall be heard by the Supreme Court during 2010. The question is whether a tariff agreement saying that helicopter pilots shall retire at the age of 60 is in defiance of the Employments act section 13-3 regarding exceptions from the prohibition against discrimination and directive 2000/78/EF.