Norway: Clarification from the Labour Court: Case Processing in Connection with Selection for Temporary Lay-offs

The Labour Court clarifies procedural requirements for temporary layoff (furloughing) processes. Although not an absolute requirement in writing, the employer must ensure sufficient grounds for testing and validating whether the selection is objective.

The restrictions in furloughing employees with longer seniority than those who are spared, and hence, deviating from the seniority (LIFA) principle, has now been considered in several recent cases by the Labour Court. The decisions help clarify the procedural requirements that apply when selecting for temporary layoffs. The main question has been whether there has been sufficient objective reason to deviate from the principle of seniority.

The Labour Court stated that the furloughing processes, to ensure sufficient notoriety, should be documented in writing, but there is no absolute requirement that the all steps are documented in writing.  The relevant question is still whether the evidence presented, whether in the form of written documentation or party and witness statements, collectively can provide the court with a sufficient basis for assessing whether the selection was objective, and specifically whether there was sufficient and objective reason to deviated from the LIFA principle.

The decision relates to a specific CBA (containing a LIFA principle) and thus directly affects those bound by this CBA, but should also be expected to   impact indirectly on businesses and workers not bound by a collective agreement.