Norway: Clarifications from the Anti-Discrimination Tribunal

Employer’s duty to facilitate and duty to prevent harassment

The Anti-Discrimination Tribunal clarifies the scope of the employer’s duty to facilitate for the functionally impaired and the duty to prevent harassment. The Tribunal emphasises the importance of the employer making a concrete and individual assessment of necessary facilitation measures, specifying and documenting the balance against the disadvantages for the employer.

A municipality employee with complex health challenges and general anxiety had his application to extend the permanent facilitation of permanent home office rejected. The decision was based on inherent challenges related to operations and the working environment. The municipality proposed alternative facilitation measures that they thought were suitable: home office one day a week, sheltered location, sound shielding and access to rest rooms.

The question was whether the municipality, by making the decision, had breached the employer’s duty to facilitate for the functionally impaired pursuant to Section 22 of the Equality and Anti-Discrimination Act.

The municipality had not sufficiently specified the challenges that a continued home office solution would impose on the business. The employee risked dropping out of working life without the scheme, which would be contrary to the purpose of the facilitation provision, which is to ensure that employees with disabilities are allowed to keep their job. The municipality was therefore found guilty of breaching the duty to facilitate by rejecting an application for a home office.

 

Employer’s duty to prevent and seek to prevent harassment in the workplace

The Anti-Discrimination Tribunal clarifies which measures will be necessary to fulfil the duty to prevent and seek to prevent harassment in the workplace.

Section 13 of the Equality and Anti-Discrimination Act imposes a duty to prevent and actively deal with harassment in the workplace. The case concerned an allegation that the employer in a nursery had not fulfilled its duty to prevent and seek to prevent harassment on the basis of ethnicity.

The Tribunal found that having a zero-tolerance policy or guideline itself is important but not sufficient to fulfil the duty to prevent harassment. Information and training are also required among the employee, as is systematic handling of incidents and risks, registration of whistle blowing etc, and plans for follow up, execution and sufficient measures. The employer at hand had not followed up on the case sufficiently well.

The Tribunal concluded that the employer had breached its duty to prevent and seek to prevent harassment in the workplace.