Apr 8, 2025
Employment in Norwegian Labor Law – Legal Frameworks and Employer's Scope for Action
Norwegian labor law is based on the principle that the employer generally decides whether and who will be hired in the enterprise. This freedom is rooted in private autonomy but is not without limitations. For employers, it is important to be aware of both the freedom of action and the legal constraints that apply to hiring.
Specific Framework in the Public Sector
For employers in the public sector, the qualification principle applies, which entails an obligation to hire the best-qualified applicant. This principle is codified in the Civil Service Act § 3, and the evaluation shall emphasize:
Education
Experience
Personal suitability
The qualification requirements specified in the announcement
Limitations in the Private Sector
In the private sector, there is no equivalent qualification principle, but the right to hire is particularly limited by:
Anti-discrimination legislation: The employer cannot emphasize the applicant's political views, membership in employee organizations, age, gender, ethnicity, or other grounds for discrimination.
Preference rights rules: Certain employees may have a statutory preference right to vacant positions.
Child labor regulations: The Working Environment Act Chapter 11 and the Participation Regulations Chapter 12 set clear boundaries for the employment of children and youths.
Collective agreements: May contain specific requirements for competence or qualifications.
Types of Employment: Permanent, Temporary, and Part-Time
The Working Environment Act provides clear guidelines on which types of employment may be used.
Permanent Employment - The Main Rule
Permanent employment is the main rule in Norwegian working life, cf. Working Environment Act § 14-9 (1). The law defines permanent employment as:
Ongoing and indefinite
Subject to the law's rules on termination
The employee is assured predictability in the form of a real job scope
This means the employer must offer a specific scope of work that obligates the employer and gives the employee both the right and the duty to perform work. Normally, this means an agreed-upon job size, but it may also be a certain number of days per week or a specific number of hours.
Zero-Hour Contracts and Permanent Employment
The definition in § 14-9 (1) was introduced in 2018 to clarify that so-called "zero-hour contracts" or "permanent employment without guaranteed pay" do not meet the law's requirements for permanent employment. The core of such agreements was that:
The employee has the right and obligation to perform specific tasks
There is no regulation of job percentage or minimum guaranteed pay
The employee chooses whether to take new assignments
No salary is paid between assignments
Such agreements are today considered temporary employment and must be assessed under the rules of § 14-9 (2).
Temporary Employment - The Exception
Temporary employment means that the employee is hired for a limited period. The access to temporary employment requires a specific basis, and legality is regulated by the Working Environment Act § 14-9 (2). If the conditions are not met, the employee may demand permanent employment.
Part-Time Employment
The Working Environment Act establishes no direct material limitations on the access to use part-time employment, but part-time workers have special rights:
Preference right to extended position (§ 14-3)
Right to a position corresponding to actual working hours (§ 14-4 a)
Additionally, the employer has a duty to discuss the use of part-time with elected representatives at least once a year (§ 14-1 a).
Contract Conclusion: When Is the Employment Contract Binding?
The employment relationship is established through an employment agreement, and the assessment of whether there is a binding agreement follows general contract law rules.
Agreement Binding Can Arise in Two Ways:
Through mutual intent of the parties: For a binding agreement to exist, the parties must have intended to commit, and the agreement must have a minimum degree of completeness. Normally, the parties must agree on:
The main content of the position
Wage
Commencement date
Through the justified expectations of the parties: Binding can arise even if the employer did not intend to commit if the employee has a justified expectation of contract binding.
An employment contract can also be concluded by conclusive behavior. If an employee performs work in another's service and this person pays a salary, this will normally be regarded as evidence of a binding employment contract.
Written Form
The employment relationship can be validly entered without a written agreement. If the parties have assumed that binding is conditional on written form, this must be respected. Such an assumption, however, must be clearly expressed between the parties.
The Period Before Commencement: What Regulations Apply?
In the period between the conclusion of the agreement and commencement, specific issues arise regarding which regulations apply, especially if one of the parties wants to free themselves from the agreement.
Commencement as a Dividing Line
The Supreme Court has in Rt. 2004 p. 76 (General Teacher) established that commencement is the starting point for whether the Working Environment Act's job protection rules apply:
Before commencement: Contractual considerations are prominent, and the employer can generally terminate the contractual relationship without following the Working Environment Act's rules on dismissal or summary discharge.
After commencement: The Working Environment Act's job protection rules apply, and the employer cannot generally assert contractual invalidity.
This principle is confirmed in HR-2021-605-A (Waiter), where the Supreme Court established that even though the lack of information occurred before employment, the validity of the dismissal had to be assessed under the Working Environment Act because the employee had commenced when the issue was uncovered.
Criticism and Modifications
The Supreme Court's rigid distinction at commencement has been criticized in legal theory, as the protective considerations justifying dismissal protection may also apply before commencement. It has been argued that the job protection rules should, in some cases, apply and restrict the employer's access to assert invalidity also before commencement.
Right to Assume the Position in Case of Unlawful Termination?
A particular question is whether the employee can demand to assume the position if the employer has unlawfully terminated the employment agreement before commencement. Since employment agreements are of a distinctly personal nature, good reasons suggest that the right to uphold the agreement cannot be as strict as in other contract types.
TSTAV-2011-81051 illustrates this. The District Court found that a bank had unlawfully terminated an employment agreement, but the employee was nonetheless not entitled to specific performance (to assume the position). The court noted that employment agreements are of a distinctly personal nature, and it should be restrained in overruling the bank's assessments of the qualities required for the position. The employee was instead awarded compensation.
Practical Advice for Employers
When hiring, employers should pay particular attention to the following:
Document the hiring process thoroughly, particularly which qualifications have been emphasized, to demonstrate that no discrimination has occurred.
Ensure that the employment agreement meets the law's requirements for permanent employment, including that the scope of work is specified.
Be aware that temporary employment requires specific grounds under the Working Environment Act § 14-9 (2).
Be aware that contractual invalidity rules can generally not be invoked after commencement. If issues are uncovered that could justify termination of the agreement, termination after commencement must occur in accordance with the Working Environment Act's job protection rules.
Gather relevant information during the hiring process, but be mindful of the boundaries for what information can be requested.
Be clear about any assumption regarding written form if the employment agreement is not to be considered binding before it is entered into in writing.
By following these guidelines, employers can both maintain their managerial rights and respect the rights of employees during the hiring process.
