Can a Person Working as a Substitute Demand Permanent Employment?
According to the Norwegian employment law, the main rule is that an employee should be permanently employed.
There are however exceptions to this rule, amongst others for substitute workers.
Substitute Workers Cover Absence in the Business
According to Norwegian law, substitute work is work filling certain assignments or a certain position where an employee is absent. It is not a requirement that the name of the employee who is substituted for is given in advance. This means that using vacation substitutes in relation to employees being absent due to vacation will be allowed without the substitutes being tied to a specific person.
It Must be Specifically Limited
Substitute work must be limited in some form. It is seen to contradict the law to initiate an ongoing, short term substitution work to cover a continuous need for substitute services in a business with a somewhat stable absence percentage. It is generally contradictory to the law to use the same substitute several times. It is presupposed that someone is actually absent and that the substitute covers necessary work, resulting from employee absence. Merely referring to a job as a substitution is clearly not sufficient to satisfy the requirements of the law. The legality must be considered based on the company’s actual needs.
Substitute Worker was in Reality Permanently Employed
In a Supreme Court case where an employee has worked for two and a half years in different substitution assignments within the same company, it was found that the employee was to be considered permanently employed. Her work did not significantly differ from the shift system applicable to other, permanently employed, employees. The substitute arrangement was considered to contradict the Norwegian employment law. In 2009 the Supreme Court did however reach the opposite conclusion. The substitute worker could not demand permanent employment as the calculated yearly substitute requirement merely amounted to approximately three positions. There was no real alternative considering the characteristics of the work to increase the main staff within the company in question due to its small size. In a case from 2006 the Supreme Court decided that a calling plan referred to as substitute work was contradictory to the law when it suggested a constant and predictable need for work within the company. These conditions had to be a basis for more permanent employees.
Do you have any questions regarding substitution work and rights?
Contact Osloadvokatene by barrister Kjersti Bolstad
Telephone 905 93 204, e-mail kjersti.bolstad@advokat.no
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