Ole Kristian Olsby Mari Vindedal November 16 2022 Supreme Court judgment over entitlement of substitute teachers Littler Norway | Employment & Immigration - Norway Ole Kristian Olsby, Mari Vindedal Employment & Immigration FactsDecisionCommentFactsBased on a case determination(1) on 25 October 2022, the Supreme Court has clarified that substitute teachers who are employed temporarily due to a lack of qualified personnel are not entitled to a permanent position after three years. The judgment is important for employers in the training sector who are struggling to recruit qualified teaching staff.The case concerned a woman who had held several temporary positions as a teacher in Nord-Fron municipality. The basis for the temporary appointments was section 10-6 of the Education Act. The provision states that teaching staff without approved education can be employed temporarily if there are no applicants who meet formal qualification requirements. The rule must ensure that pupils are not left without a teacher, even if there is a shortage of applicants with formal teacher training. This is a common situation, especially in small municipalities in the districts.When the woman had been temporarily employed for three-and-a-half years, she demanded permanent employment in the municipality pursuant to section 14-9(7) of the Working Environment Act. According to this provision, employees who have been continuously employed temporarily for more than three or four years (depending on the basis) must be employed permanently. The municipality opposed the demand.The question before the Supreme Court was whether the three/four-year rule in the Working Environment Act also applies when an unqualified teacher is hired temporarily according to section 10-6 of the Education Act.DecisionInitially, the Supreme Court clarified that the main rule is that employees must be employed permanently. This provides stable and predictable framework conditions and is normally to the advantage of both employer and employee. Temporary employment therefore requires special authorisation – either in the Working Environment Act or in a special act such as section 10-6 of the Education Act.The Supreme Court reviewed the preparatory works for the Education Act and believed that these indicated that the rule in section 10-6 was intended to prioritise the pupils' education over the job security of temporary teaching staff. Neither the wording nor the preparatory works for the Working Environment Act section 14-9 provided a basis for the three/four-year rule to apply to temporary employment under the Education Act. According to Norwegian law, it was therefore clear that the temporarily employed teacher was not entitled to permanent employment.An important question in the case was whether the EU Temporary Agency Workers Directive dictated a different result. According to EU law, the states have a duty to implement measures to prevent the abuse of repeated temporary employment. Renewal of such temporary employment is only permitted if there are objective reasons. The Supreme Court therefore had to decide whether there was such an objective reason. However, a unanimous Supreme Court held that the quality of teaching, which is the background for the competence requirements in the Education Act, was an objective reason that could justify the repeated use of temporary employment.CommentThe judgment is important for employers who struggle to recruit qualified teaching staff and therefore have to use teachers without formal education. This is a practical situation and a real problem in many municipalities. The judgment clarifies that municipalities and others with employer responsibilities in the education sector can hire temporarily to ensure that students actually have a teacher, without running the risk of having a surplus of permanent employees.For further information on this topic please contact Ole Kristian Olsby or Mari Vindedal 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.Endnotes (1) The judgment can be found here: HR-2022-2049-A (Norwegian only).