Norway: Ruling from the Court of Appeal Regarding Summary Dismissal for Sexual Harassment
The Norwegian Court of Appeal has handed down a judgement regarding summary dismissal for sexual harassment towards younger co-workers. The case concerned a shipworker in a senior position who was responsible for the staff on a ship’s galley. The company, a non-profit foundation, aimed to help challenged young people between the ages of 16 and 25 without education and jobs by providing employment and training on the ship. Many vulnerable young people were, therefore, employed by the company.
Five young employees had reported unwanted attention from the shipworker, which was assessed as whistleblowing. The young employees stated that the shipworker on several occasions gave them unwanted sexual attention, intimate hugs, massages, touched them on the inside of their thighs, sent inappropriate text messages, and invited them to his lugar. The shipworker acknowledged that the allegations were true, but that these were not sexual acts but acts to show care. With these acts as the basis, the company decided to summarily dismiss the shipworker.
In assessing whether the dismissal was justified, the Court of Appeal noted that whether the employee’s actions constituted “sexual harassment” would be relevant, but that not every sexual harassment constitutes grounds for dismissal. An overall assessment of the interests of the employee and employer must be made when assessing whether the dismissal is justified. In addition, the dismissal must not appear to be an unreasonable or disproportionate reaction.
The Court of Appeal first assessed whether the actions constituted sexual harassment and stated that in order for sexual attention to be considered as sexual harassment, it must be unwanted. The actions were considered undesirable and distressing by the Court of Appeal. Although the attention provided by the shipworker was not considered to be grave, the Court of Appeal concluded that it was serious enough for any ordinary person to understand that the attention was unwanted and that the effects were distressing for those exposed to it. The Court of Appeal, therefore, concluded that the actions constituted unwanted sexual harassment.
Furthermore, the Court of Appeal assessed whether the acts were serious enough to be grounds for summary dismissal. The Court of Appeal noted that the extent and duration of the acts were of such a nature that they were serious overall. In their assessment, the Court placed particular emphasis on the number of whistleblowers, the shipworker’s senior position and the huge age difference between the shipworker and the whistleblowers. The shipworker was 30 years older than the whistleblowers, had significantly higher rank and the actions had taken place over several years. The Court of Appeal also clarified that a regular dismissal was not sufficient, as it would mean that he could continue working during the notice period.
A summary dismissal is a serious sanction that requires a serious violation. In this case, circumstances such as age, rank, frequency, duration and extent of the acts were themselves sufficient to be defined as serious sexual harassment that gave grounds for dismissal.
