On 17 February 2022, the Supreme Court issued a judgment regarding an employee who had been dismissed while on sick leave. The issue regarding an employer's "duty to facilitate" has not been contemplated by the Court for some time. This ruling provides clarification on several important factors that employers should take into consideration when following up on sickness absences.


In the case at hand, the employee had worked for their employer for 18 years. During the last 10 years, he had taken full or partial sick leave over long periods, during which time the employer and the Norwegian Labour and Welfare Administration would follow up with the employee.

Both employer and employee intended for the employee to return to his full-time position. Therefore, an activity plan was drawn up to allow for a gradual return to his full-time position. During this process, substitute workers would cover his remaining duties.

In 2019, it became clear that the employee could not, or did not, want to increase his working time and preferred to continue in a permanent part-time position, working 50% of the full-time working hours, while other employees filled the remaining 50%. The employer believed that a permanent part-time position was not conducive to the nature of the employee's work. In fact, all other employees in similar roles were contracted to work full time. Therefore, the employer did not want to divide the full-time position into two permanent part-time positions. The employee was, therefore, dismissed from his position altogether. He filed a lawsuit in response, claiming that the dismissal was illegal.


A dismissal must be objectively justified in accordance with section 15(7) of the Working Environment Act. In this case, the reason given was the employee's reduced ability to work due to illness. The Supreme Court held that it would be central to the legality of the dismissal whether the employer had fulfilled their statutory duty to facilitate, which is provided for in section 4(6) the Working Environment Act.

According to this provision, the employer must:

as far as possible, implement the necessary measures to enable the employee to retain or be given suitable work. The employee shall preferably be given the opportunity to continue his normal work, possibly after special adaption of the work or working hours, alteration of work equipment, work oriented measures or the like.

The Court pointed out that this duty is far-reaching and it can include measures that are financially burdensome and resource-intensive for the employer, such as reducing the working hours of the employee while hiring a substitute. At the same time, the duty does not extend to requiring the employer to create a new position for the employee.

The employer does not have to carry out every theoretically possible measure in order to fulfil the duty to facilitate. If a measure causes significant problems for the employer, they may not be obliged to implement the measure – a discretionary overall assessment for each case would, therefore, be necessary to establish whether the duty had not been fulfilled.

In assessing whether the duty to facilitate towards the employee requires the employer to implement structural changes, the following factors are relevant:

  • the duration of the measure;
  • whether the work already involves the use of part-time workers; and
  • whether the employer needs to introduce a new role.

The Court held that there must be compelling reasons for the employer to implement permanent changes in the organisation of the business and the nature of the role itself.

In this case, the Court concluded that the duty to facilitate did not require the employer to implement a permanent change in the organisation of the business and the nature of the role by dividing a full-time position into two permanent part-time positions.

The employee claimed that the employer, at the time of dismissal, had to document the problems that they believed would arise by converting the role to permanent part-time position. He believed that these problems could not be further elaborated in the trial through statements by the litigant party and witness statements from the employer's side.

The Court did not agree with this. The Court nevertheless believed that the employer could have documented the problems earlier (ie, during the dismissal process). Employers should, therefore, remember to document in writing all elements of a dismissal assessment before the employee is dismissed.


The judgment shows that the employer's duty to facilitate towards the employee on sick leave extends far, but that there is a limit that depends on the circumstances of each case.

The duty to facilitate can, among other things, involve reducing working hours and hiring a temporary worker. It may also include both temporary and permanent change in the organisation of the business and the nature of the work.

All facilitation measures and all assessments that the employer makes must be documented, including the problems that a given facilitation measure will have for the company and the employer's assessment of these.

For further information on this topic please contact Ole Kristian Olsby or Lise Gran at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.