On 28 February 2024, the Supreme Court rendered a new judgement regarding an employee's right to exemption from night work due to health reasons, pursuant to Section 10-2 of the Working Environment Act.
The matter concerned a 61-year-old offshore worker who, after suffering a heart attack in 2020, requested exemption from night work based on medical advice. The employee was granted exemption from night work and, since 2020, had only been scheduled for a few night shifts. Towards the end of 2021, the employer notified him that exemptions from night work will, on a general basis, no longer be granted. The employee upheld his claim for exemption from night work but was denied.
According to Section 10-2 second paragraph of the Working Environment Act, an employee who regularly works at night has the right to an exemption from night work if needed “for health, social or other weighty welfare reasons and can be arranged without major inconvenience to the undertaking.” This provision implements Norway's obligations under the EU Working Time Directive (2003/88/EF) and, according to the Supreme Court, provides better protection for employees than the directive itself. The majority of the Supreme Court concluded that the provision entails the right to continue in the same position without the obligation of night work unless it constitutes “significant inconvenience” to the enterprise.
It was not disputed that the employee's health condition initially warranted exemption from night work. However, the question for the Supreme Court was whether such an exemption would cause “major inconvenience” to the undertaking. The Supreme Court noted that there is a high threshold for concluding that an exemption entails “major inconvenience” to the undertaking. It was assumed that the assessment of inconvenience involves a balancing of interests, and a crucial factor is whether there is available daytime work in the undertaking for the employee concerned. Furthermore, in the assessment of inconvenience, consideration must also be given to the disadvantages that an exemption would impose on other employees.
In the assessment of inconvenience, the Supreme Court placed decisive weight on the organizational difficulties that the enterprise would face by granting the employee an exemption from night work. An exemption would pose challenges to the organization and composition of offshore work teams, where the enterprise must always ensure sufficient expertise to carry out tasks on the rig. The enterprise also had to consider that an exemption from night work for the employee would result in other employees having to work more night shifts, making it more difficult for the company to accommodate others' desires for less night work. The enterprise's desire to avoid overtime for employees was also considered a significant factor.
Another significant factor was that the employee had rejected the opportunity to discuss the employer's offer of alternative work on land. Despite the potential salary consequences for the employee, the Supreme Court assumed that the right to exemption from night work did not entail the right to maintain a particularly high salary level for the type of work in question. Following a comprehensive assessment, the Supreme Court unanimously concluded that an exemption from night work for the employee would constitute a “significant inconvenience” to the enterprise.
The judgement clarifies the threshold for what is considered “significant inconvenience” to the enterprise in connection with working time arrangements. A specific assessment must be made, where organizational challenges resulting from such an exemption for the enterprise will be a particularly relevant factor. The judgement illustrates that in cases where the enterprise has attempted to accommodate by offering other available work, it takes much for the employee to be granted exemption.
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