Questionnaire
The prohibition of age discrimination in labour relations 1
Norway
Helga Aune, PhD.
Post-Doctoral Research Fellow, Faculty of Law, Department of Public and
International Law, University of Oslo, Norway
1. Which statutory instruments addressing age discrimination have been enacted in
your country? If none, what alternative means of protection are available?
Statutory instruments addressing age discrimination are primarily set out in the
Norwegian Working Environment Act (WEA) of 17 June 2005 no. 62, under chapter
13 entitled ‚Protection Against Discrimination‛. Section 13-1 states that: ‚Direct and
indirect discrimination on the basis of political views, membership of a trade union,
sexual orientation, disability or age, is prohibited‛2.
As a participant of the European Economic Area Agreement (EEA), but not a Member
State of the European Union, Norway is only bound by EU legislation insofar as such
instruments are embodied in the EEA. Claims for violations of the EEA may be
brought before the EFTA Court or the EFTA Surveillance Agency (ESA). Although
EU-Directive 2000/78/EC is not part of the EEA agreement, the Norwegian
government and parliament have chosen to incorporate it in chapter 13 of the WEA.
Norway’s aim is for national legislation to offer employees the same or a higher level
of protection as within the EU Member States3. Since Directive 2000/78/EC is not part
of the EEA, claims concerning age discrimination may not be brought before the
1
This report covers the period until 31 December 2009.
2
http://www.ub.uio.no/cgi-bin/ujur/ulov/sok.cgi?type=LOV
(accessed on 16.09.2009)
3
See preparatory work for the White Paper Ot.prp 104 (2002-2003), chapter 3.2.
http://www.regjeringen.no/nb/dep/fad/dok/regpubl/otprp/20022003/otprp-nr-1042002-2003-.html?id=127352
(accessed on 16.09.2009)
1
EFTA Court or the ESA. The Norwegian Courts nevertheless still look to decisions of
the EU Court(s) in cases of age discrimination4.
Aside from the WEA, discrimination on the grounds of age is also prohibited under the
Seamen’s Act of 30 May 1975 no. 18, chapter II A5, section 33, where paragraphs 1 and 2
are worded as follows:
“Direct and indirect discrimination on the basis of political views, membership of a trade union,
sexual orientation, disability or age, is prohibited.
Harassment and instruction to discriminate against persons for reasons referred to in paragraph 1
are regarded as discrimination‛.
Yet one challenging issue in relation to age discrimination remains. It concerns the
various mandatory retirement ages still stipulated in sundry legislation and trade union
agreements as detailed below.
2. Which age groups are protected?
According to section 13-1 of the WEA, all age groups, i.e. both old and young, are
protected against discrimination. The aim is to prevent age being used as a criterion to
treat people differently (see White Paper NOU 2009:14 Chapter 12.76).
3. Are there rules of preference connected to age in labour relations?
There are no special rules of preference here. The only exception relates to the holiday
entitlements of employees reaching the age of 60 during the calendar year in question,
See, for example, the judgment of the Municipal Court of Stavanger, TSTVG-2005-75777, of
12 May 2006 regarding a company’s retirement age of 67. Following appeal, this case was
finally settled out of Court by mutually binding agreement.
4
5
Added by the Law of 16 February 2007 no. 8.
See preparatory works for the WEA chapter 13:
http://www.regjeringen.no/nb/dep/aid/dok/regpubl/otprp/20042005/otprp-nr-49-20042005-.html?id=396602
6
(accessed on 16.09.2009)
See preparatory works for a new common Act for all discrimination grounds including age:
http://www.regjeringen.no/nb/dep/bld/dok/nouer/2009/nou-2009-14.html?id=566624
(accessed on 16.09.2009)
2
whereby they benefit from an extra 6 days’ holidays as provided for under section 5, no.
2, of the Holiday Act of 29 April 1988 no. 21 (Ferieloven)7. Norway’s ‘Working
Environment Act’, in section 11-1, also sets various age limits (13-18) regulating children’s
rights in terms of employment.
4. Is age discrimination prohibited in active labour relationships only, or are situations
outside the contractual relationship, like occupational pension schemes, included?
Norway’s Working Environment Act, in section 13-2 (1), states that the provisions of the
chapter shall apply to all aspects of employment, including, though not exclusively: a)
advertising of vacancies, appointment, relocation and promotion, b) training and other
forms of skills development, c) pay and working conditions, d) termination of
employment. According to section 13-2(2), the prohibition of age discrimination also
covers the employers’ selection and treatment of employees, self-employed and contract
workers. Furthermore, the provisions of chapter 13 cover enrolment and participation in
a trade union, an employers’ organization, or a professional organization, and hence also
include the advantages/benefits such organizations provide for their members, as
specified in section 13-2 (3). Under section 13-2 (4) of the WEA, the general provisions of
chapter 13 do not, however, apply to discrimination owing to membership of a trade
union in respect of pay and working conditions as set out in collective pay agreements.
The general starting point is that the prohibition against age discrimination is limited to
the (individual) contract of employment/relationship. This said, contractual arrangements
such as occupational pension schemes come under section 13-2(1) c of the WEA, whereby
they are viewed as part of the pay. Consequently, legally speaking, the crucial question is
whether or not discrimination can be viewed as fair and not disproportionate with regard
to any one person only. In such cases, discrimination – i.e. differential treatment - may be
considered as not contravening the prohibition against indirect discrimination on the
basis of age under the terms of section 13-3 (2).
The Norwegian Ministry of Justice/Police so far maintains that mandatory retirement ages
can continue to be upheld and not viewed as violating the prohibition against age
discrimination. According to Norway’s National Insurance Act of 28 February 1997 no. 9
7
http://www.arbeidstilsynet.no/lov.html?tid=90345
3
(Folketrygdloven), the official retirement age is 67 years. However, this is not formally an
age limit at which persons must retire, but the earliest age at which they can receive
retirement benefit(s). The WEA provides that employees are entitled to retire at the age of
67, but are under no obligation to do so. Once the employee reaches the age of 70, the
employer may terminate the employment contract without having to justify the grounds
for doing so. This is stipulated in the WEA, under section 15-7 (4). Special legislation does,
however, exist for State/Public Service employees. One example is the Act on the
Retirement Age of Civil Servants of 21 December 1956 no. 1 (Lov om aldersgrenser for
offentlige tjenestemenn), section 1, paragraph 18. Civil servants are generally under
obligation to retire at the age of 70 when they are entitled to a pension, as stated in section
2. Special age limits can be set in cases where service may be especially strenuous due to
physical or psychological hardships so that people are normally not able to work until the
age of 70 (see section 2, paragraph 1 a), or where service demands call for specific physical
or psychological abilities that normally wane before the age of 70 (see section 2,
paragraph 1 b). Such lower limits may be the ages of 68, 65, 63 or 60 (see section 2,
paragraph 2). Age limits for military personnel are regulated by the Act on Military
Personnel of 2 July 2004 no. 59, section 99. The general age limit is 60 years, with possible
year-by-year extension where special conditions provide that it is better for the person to
continue in employment (see section 9, final paragraph). Special retirement age limits
may also be set through collective agreements.
The ‘legal’ age limits and those stipulated in collective agreements are being contested
before the Courts. The judgment of the Appeal Court of Agder, LA-2008-196596 of 24 June
2009 (Nye Kystlink), contended the provision contained in the Seamen’s Act section 19 (1),
paragraph 6, prescribing protection against termination of employment contracts up to
only the age of 62. The two employees having received notice of termination argued that
this provision violated the prohibition against discrimination on the grounds of age. The
http://websir.lovdata.no/cgilex/wiftsok?button=%A0+S%D8K+%A0&emne1=aldersgrensebestemmelsen&emne2=state
n&emne3=&depa=&kort=&dato=&para=&ikra=&endret=&endrer=&publisert=&kunn=&trun
ker=on
8
(accessed on 16.09. 2009)
http://www.lovdata.no/cgi-wift/wiftldles?doc=/usr/www/lovdata/all/nl-20040702059.html&emne=lov*%20om*%20yrkesbefal*&
9
(accessed on 16.09.2009)
4
Appeal Court referred to the preparatory works during which the issue had been debated
by the legislator and the age limits in the Seamen’s Act deemed equitable, and thus not
disproportionately ‘unfair’ to the person(s) so treated. It consequently ruled that in these
two cases there was no contravention of the prohibition against discrimination on the
basis of age. The Appeal Court’s judgment was partially appealed before the Supreme
Court, with a fresh hearing scheduled for 26 January 2010.
5. What type of contractual relationship is covered by age discrimination provisions?
(labour relations only, or also self-employed persons?)
The prohibition of age discrimination covers both labour relations, i.e. direct
employee/employer relationship, and self-employed persons (see section 13-2 (2) of the
WEA).
6. What types of discrimination are prohibited (direct, indirect)? How are they defined?
Both direct and indirect discrimination are prohibited (see section 13-1 (1) of the WEA).
The definitions are not explicit in chapter 13 of the WEA, but are discussed in the
preparatory works10. They are akin to those set out in other discrimination-related
legislation such as the Gender Equality Act11 or the Anti-Discrimination Act12. Direct
discrimination is deemed to mean that one person is less favourably treated than another
in a comparable situation. Indirect discrimination is taken to mean that, according to an
apparently neutral provision, criterion or practice, persons of a certain age could find
See the preparatory comments, chapter 25:
http://www.regjeringen.no/nb/dep/aid/dok/regpubl/otprp/20042005/otprp-nr-49-20042005-/25.html?id=397026
10
Act on Gender Equality of 9 June 1978 no. 45, section 3 (Lov om likestilling):
http://www.lovdata.no/cgi-wift/wiftldles?doc=/usr/www/lovdata/all/nl-19780609045.html&emne=likestillingslov*&
11
The Act on Prohibition of Discrimination on Grounds of Ethnicity, Religion, etc… of 3 June
2005 no. 33, Lov om forbud mot diskriminering på grunn av etnisitet, religion mv.
(diskrimineringsloven), see section 4: http://www.lovdata.no/all/hl-20050603-033.html
12
5
themselves at a particular disadvantage compared to other persons. Another issue here is
whether harassment and/or incitement to discriminate against persons for the reasons
listed in the WEA section 13-1 (1), including age, are regarded as discrimination (see
section 13-1 (2).
7. Does a prohibition against harassment based on age exist?
In Norway, harassment and/or incitement to discriminate against persons on the grounds
of their age is regarded as discrimination, and is prohibited (see section 13-1 (2) of the
WEA).
8. Are there exemptions from the prohibition? How are those exemptions defined? Are
they provided for solely in statutory provisions, or are social partners, employers,
and/or other entities allowed to develop additional ones?
The Norwegian Working Environment Act does not stipulate any particular exceptions
from the prohibition, but there a proviso in section 13-3 (1), the official English translation
of which reads: “Discrimination that has a just cause that does not involve disproportionate
intervention in relation to the person or persons so treated and that is necessary for the
performance of work or profession, shall not be regarded as discrimination pursuant to this Act”.
Section 13-3 (2) is worded: “Discrimination that is necessary to the achievement of a just cause
and does not involve disproportionate intervention in relation to the person or persons so treated is
not in contravention of the prohibition against indirect discrimination, discrimination on the basis
of age or discrimination against an employee who works part-time or on a temporary basis.”
It means that the possibility to treat people differently because of age is extended when it
comes to age rather than other reasons of discrimination which are covered in the
prohibition.
The possibility to make exceptions from the prohibition against discrimination as defined
in section 13-3 (1) and (2) applies equally to all, be they employers, social partners or other
entities.
6
It is long-established practice to legislate specific retirement ages for various groups of
professions, as provided for under Norway’s Act on the Retirement Age of Public
Employees13 . Retirement ages are similarly stipulated in different collective agreements.
9. Are there specific grounds justifying age discrimination? Do general grounds of
justification apply to age discrimination?
What little case history there is indicates that general grounds are admissible, e.g. where
there is a need in some occupations for retirement prior to the ‘normal pensionable’ age
owing to strenuous working conditions and notwithstanding an individual’s wishes and
state of health to continue working (see answers to questions 4 and 8 above). In one
instance, the Court found that the interest of younger pilots weighed more heavily than
that of older pilots entitled to claim pension benefits14, with no regard for the individual
considerations of the older pilots. The one case where the Court clearly states the
importance of scrutiny as regards the arguments of the employer wishing to uphold a
retirement age claimed by the employee to be discriminatory went before the Oslo
Municipal Court on 19 November 200915. The contention here, for a ruling to be given,
concerned the employee’s right to remain in her position until final judgment of the case
(see answer to question 10 below).
10. What legal consequences derive from violating age discrimination law? Who is
entitled to bring a cause of action under the discrimination law?
Legal consequences deriving from violation of age discrimination law are financial
compensation, including damages. The legal evaluations here are the same as for ordinary
compensation law. Provisions in collective agreements, employment contracts, as well as
private internal regulations, violating those contained in chapter 13 of Norway’s Working
13
LOV 1956-12-21 no. 1: Lov om aldersgrenser for offentlige tjenestemenn m.fl.
14
Case ref.: Asker and Bærum Municipal Court, 08-195258TVI-AHER/2 (airline pilots).
15
Case ref.: Oslo Municipal Court, 09-143503TVI-OTIR/02.
7
Environment Act are invalid. Reprisal against anyone claiming to have been a victim of
discrimination is regulated by the general provisions of the WEA, chapter 216.
Whether or not a person should be entitled to remain in active employment until a final
judgment is rendered through the judicial system was the issue in the Eidsivating Appeal
Court’s decision on 24 June 200917. Here the complainant claimed to have been
discriminated against because of age when the National Insurance System refused to
renew his agreement regarding the amount of reimbursements of costs per patient treated
‚fastlegeordning‛. The Appeal Court turned down his claim to have the agreement
maintained pending final judgment of the case. The Supreme Court then rejected it
outright on the grounds that the matter was not related to an employment contract as
such, but merely subject to the right to receive a public refund under the terms of a special
agreement between the State and private medical practitioners.
The outcome was the reverse in the Oslo Municipal Court’s decision of 19 November
200918. This case concerned an insurance company whose internal regulation specified
that the ‘in-house’ retirement age was 67, i.e. not the retirement age of 70 provided for in
Norway’s Working Environment Act. When the employee turned 67, she wished to
continue in her position and therefore claimed that the enterprise employing her was
violating the prohibition against age discrimination according to sections 13-1 and 13-3 of
the WEA. She further demanded the right to remain in her position in accordance with
the provisions of section 15-11 (2) and (5) until final judgment of the case. The Court
found that all of the arguments put forward by the employer for maintaining a retirement
age of 67 were general and not specific. The general arguments hinged on the interest of
having a sound employment policy, as well as securing a retirement process to safeguard
the dignity of the elderly. To this the Court responded that in the legislator’s estimation
most people would be able to retire at the age of 70 with their dignity intact. The claimant
was consequently granted the right to remain in her position until final judgment, and the
employer was advised by the Court to compensate the loss for the time she had been out
of work.
16
See White Paper NOU 2009:14 chapter. 5.5.6.
17
See case 09-047936ASK-ELAG/ - (Medical Doctor contesting retirement age).
18
Oslo Municipal Court, case 09-143503TVI-OTIR/02, 19 November 2009.
8
In addition to compensation, violation of the provisions of chapter 13 of the WEA may be
subject to criminal prosecution, with possible fines or imprisonment for up to three
months, or both, according to section 19-1 of the Working Environment Act, including
similar penalties for anyone duplicitous in such criminal acts.
11. With whom lies the burden of proof in discrimination cases?
The rule of shared burden of proof applies (see the WEA, section 13-8, as well as the
Seamen’s Act, section 33H). Where an employee or job applicant submits information
giving reason to believe there is discrimination contravening the general provisions of
chapter 13 of the WEA, it is for the employer to substantiate that no discrimination or
reprisal has occurred. In one case heard before the Oslo Municipal Court, a woman
claimed she had been ‘by-passed’ because of her age when applying for a position. The
employer proved to the Court that the other two applicants were better qualified and
consequently ruled that no discrimination had taken place 19.
12. What types of proceedings (civil, criminal, or administrative) are applicable for
enforcing age discrimination provisions?
Claims on the grounds of age discrimination may be brought before Civil Courts or
subject to administrative proceedings, i.e. the Equality and Anti-Discrimination Ombud20,
with the Norwegian Equality Tribunal21 as institution of ‘first instance’ for appeal. It is to
be noted that neither the Ombud nor this Tribunal have powers to award compensation.
This can only be done by the Courts, meaning that a case first has to be filed with the
Ordinary Courts. However, administrative decisions of the Tribunal can be brought
before a Court of Law for a full review of the case (see the Act on the Equality and AntiDiscrimination Ombud and the Equality Tribunal, section 12, paragraph 122). Legal
19
Oslo Municipal Court, case 07-036427TVI-OTIR/10 of 20 June 2007.
20
http://www.ldo.no/en-gb/
(accessed on 16.09.2009)
21
http://www.diskrimineringsnemnda.no/wips/2094117726/
(accessed on 16.09.2009)
See the Act on the Equality and Anti-Discrimination Ombud and the Equality Tribunal
(The Anti-Discrimination Ombud Act) of 10 June 2005 no. 40, Lov om Likestillings- og
22
9
proceedings for review of an administrative decision of this Tribunal must be undertaken
within three months of receipt of notification of the decision (see section 12, paragraph 2).
Legal proceedings regarding the validity of an administrative decision of the Tribunal
shall be brought against the State, represented by the Tribunal (see section 12, paragraph
3).
The Ombud and Tribunal are a free low-threshold complaint system. Their jurisdiction is
defined in the Act on the Equality and Anti-Discrimination Ombud and Equality
Tribunal. An employee claiming to be a victim of age discrimination can refer the
complaint to the Ombud (see the Anti-Discrimination Ombud Act, section 3, paragraph
4). Upon examination of the parties’ arguments in writing, the Ombud then determines
whether or not the prohibition against discrimination has been violated. Often in such
proceedings the Ombud issues a ‘recommendation’ whereby the party deemed to be ‘in
breach of the law’ must redress ‘the wrong’. Decisions of the Ombud are not legally
binding administrative decisions, but do attest to its evaluation of the case. Should a party
not be satisfied with the outcome, it can be appealed before the Tribunal having the
jurisdiction to either provide statements or issue administrative orders (see the AntiDiscrimination Ombud Act, section 7). This Tribunal can also order an action to be
stopped or remedied, or for other measures to be implemented to ensure that
discrimination, harassment, incitement or reprisals cease and are not repeated. A time
limit may be set for compliance with such an order (see section 7, paragraphs 2 and 323).
The Tribunal must state the grounds for an administrative decision at the time the
decision is made (see section 7, paragraph 4).
The Tribunal may make an administrative decision to impose a coercive fine to ensure
implementation of orders pursuant to section 7 if the time limit for complying with the
order is exceeded (see section 8, paragraph 1). The coercive fine begins to run if a further
time limit for compliance with the order is exceeded and normally runs until the order
has been complied with. The Tribunal may reduce or waive a fine should special reasons
warrant doing so. The coercive fine accrues to the State. An administrative decision to
impose a coercive fine constitutes grounds for enforcement. The Tribunal must state the
diskrimineringsombudet og Likestillings- og diskrimineringsnemnda (diskrimineringsombudsloven). LOV2005-06-10-40
http://www.regjeringen.no/en/doc/Laws/Acts/The-Act-on-the-Equality-and-AntiDiscrim.html?id=451952
(accessed on 16.09.2009)
The Tribunal’s decision no. 3/2008 has in practice been ignored by the employer and the
woman claiming to be a victim of age - and sex - discrimination has now, with the assistance
of her (trade) union, taken the case before the Municipal Court. It is to be noted that it is not
the Tribunal initiating the case before the Court. According to the plaintiff’s lawyer, the case
will again be heard in January 2010.
23
10
grounds for an administrative decision imposing a coercive fine at the time the decision is
made.
The competence of the Tribunal is limited in relation to other administrative authorities
(see section 9). The Tribunal may not annul or amend administrative decisions made by
other public administrative agencies, nor may it issue orders as to how the authority to
make administrative decisions must be exercised to avoid contravening the provisions in
the various Acts as mentioned in section 1, paragraph 2. Administrative decisions made
by the Tribunal are non-binding for the King24 or Ministries.
Age-related provisions following collective agreements may be brought before the Labour
Court, although as yet there have been no such cases.
13. Is a government agency responsible for enforcing age discrimination provisions?
What competences are assigned to that agency?
See the Ombud and Tribunal system as described in the answer to question 12. The
Ombud and Tribunal are financed by the government through the Ministry of Children
and Equality. The Ombud and Tribunal system is nevertheless independent and
Ministries may not instruct the Ombud and Tribunal system as to the outcome of specific
cases or as to how the law is to be interpreted.
14. Are unions, interest groups or non-governmental organizations provided the right
to bring suit to enforce age discrimination provisions?
Section 13-10 of the Working Environment Act stipulates that “an organization whose
purpose is, wholly or partly, to oppose discrimination for reasons referred to in section 13-1,
paragraph 1, may be used as an agent in administrative proceedings pursuant to this chapter.”
Class actions may be an option in instances of especially indirect discrimination (see the
Civil Procedures Act25, sections 35-6 or 35-7). Interest groups or non-governmental
organizations, including public administrative organizations, whose purpose is wholly or
24
In practice the government.
Act on Civil Procedures of 17 June 2005 no. 90 (Lov om mekling og rettergang i sivile tvister
(tvisteloven)
25
11
partly to work for the interests at stake, may bring suit in class actions according to the
Civil Procedures Act section 35-3. The Ombud and Tribunal are not regarded as falling
within that group of public administrative organizations according to the preparatory
comments to this section. Unions, however, are entitled under section 35-3 to file a class
action claim.
Moreover, employee unions may also act as ‚hjelpeintervenient‛, i.e. a support service in
addition to the lawyer representing the employee (see the Civil Procedures Act, section
15-7 (1) b).
15. Effects of age discrimination prohibition on the recruitment process (exemplary
headings for orientation purposes)
Of all the age-related cases handled by the Ombud and Tribunal system, the prohibition
of age discrimination during the recruitment process seems to be one of the few areas
where the prohibition is actually effective in administrative rulings. The Ombud has
addressed a number of complaints regarding the effects of prohibition of age
discrimination on the recruitment process26, (see below).
- Formulation of offers of employment/advertisements
Such cases refer to the wording used in advertisements. Typical examples include
‚company seeks a mature, older female receptionist‛, or ‚women between the ages of 30
and 45‛. Here we see age combined with gender. Other examples are where age is
combined with gender and ethnicity: ‚Norwegian women aged 20-25‛. Age only has
been a requirement in types of advertisements seeking people between the ages of 18 and
30,.
Recently, following criticism by the Ombud, the Ministry of Foreign Affairs changed its
previous practice of indicating an age category of between 25 and 32 for applicants for
trainee positions, ‚UD-aspiranter‛.
- Application files
26
See the Ombud’s decisions regarding search word “alder” (age).
(Accessed on 16.09.2009)
12
No cases are mentioned on the Ombud Internet pages.
- Job interviews
One case involved a 61-year old man who was not called in for an interview even though
he was well qualified for the position. The Ombud concluded that he was discriminated
against because of age. In other complaint cases, the Ombud found that age was not the
reason for not getting the job after interviews, but rather other factors such as personal
suitability or that other applicants were better qualified. In these cases the age factor is
often combined with ethnicity as grounds for complaint against discrimination.
- Guidelines for selection
No cases specifically relating to guidelines are referred to on the Ombud’s Internet pages.
- Notice of refusal
Generally, employers will not openly state that a person has been turned down because of
age. However, as in the examples above, applicants often have the impression that they
had the ‚wrong‛ ethnic background or age, or both.
Cases from the Tribunal
The Tribunal handled eight cases during the period 2006-2009 where age was one or more
of the grounds of discrimination. Two of these concerned the stipulation of age in offers
of employment/advertisements: LDN-2006-10- (a laundry seeking a mature lady of
between 30-50) and LDN-2007-3 (a travel agency seeking employees between 22-35). In
both cases the Tribunal ruled that the use of age as a requirement was unlawful and in
contravention of the Working Employment Act, section 13-1, paragraph 1.
In case LDN-2006-27, an applicant for a research position (Post-Doctorate Research
Fellow) claimed to have been discriminated against because of age when turned down by
the National Research Council. At the time, the applicant was aged 48. The Tribunal never
evaluated the reality of the case, finding that the sole basis for protection against age
discrimination under section 13-2 of the Working Environment Act is the employment
relationship between employers and employees, in addition to protection against agebased discrimination as regards self-employed workers and subcontractors. In this
instance, it deemed there was no coverage of the relationship between the National
Research Council granting the funds and the applicant who, if the money were granted,
13
would be employed by the specific research department which would in practice receive
the money to hire a specific person. The Tribunal added that, given the fact that PostDoctorate positions aim to enable young researchers to qualify for senior positions, age
must be a factor of relevance in an overall evaluation of many qualified applicants.
The Tribunal did not evaluate the reality in case LDN-2007-30 either. Here a man claimed
there was age-based discrimination when part of the pension system was altered.
However, the changes occurred at his place of work in 1988, whereas the protection
against age discrimination only came into force as of 1 May 2004.
Two decisions of the Tribunal relate to the issue of whether or not age was part of the
reason why the claimants were lagging behind in their level of salary compared to
younger colleagues (see cases LDN-2008-12 and LDN-2008-32). In neither case did the
Tribunal find any circumstances pointing towards age discrimination. Other factors had
been of decisive relevance.
Another case, LDN-2008-19, regards the question of discrimination on combined grounds
of age and gender given the fact that the complainant had undergone a sex change
operation. The Tribunal evaluated the case following the provisions of the Gender
Equality Act on the sex change issue, while the question of age was evaluated according
to section 13-1 in the Working Environment Act. The Tribunal did note that the employer
had explained that a reasonable age profile of the entire group of people to be employed
was one among many criteria considered in the hiring process. It similarly noted that the
ages of those who had been hired were evenly spread between 22 and 50 years, and that
two of them were over 50. The Tribunal found no reason or documentation indicating
that age had been a criterion specifically ruling out the complainant in the case, and thus
the burden of proof never shifted to the employer. The Tribunal’s decision was that the
employer had not violated section 13-1 of the Working Environment Act.
Case LDN-2008-3 before the Tribunal was also about the combined grounds of age and
gender27. A 41-year old female fire constable had applied for a position as fire constable,
but it was awarded to a 27-year old male. Here the Tribunal pointed to the fact that the
employer had already, at the initial stage of advertising the vacancy, violated the
27
See footnote 18 above on further development of the case.
14
prohibition against age discrimination under section 13-1 of the Working Environment
Act by stipulating that applicants had to be aged between 22 and 35.
Discrimination in the hiring process has been the theme of only one case before the Civil
Courts (see Oslo Municipal Court, case 07-036427TVI-OTIR/10 (unpublished) of 20 June
2007). It was that of a person claiming to have been by-passed for a position because of
old age. Although the claimant lost the case, the judge ruled that the costs be shared
between the parties given the special importance of cases of discrimination being brought
before the Courts.
16. Effects of prohibiting age discrimination on working conditions (exemplary
heading for orientation purposes)
Both direct and indirect discrimination on the basis of age is prohibited (see the WEA,
section 13-1 (1). Direct discrimination is when a person is treated less favourably than
another has been or would be treated in a comparable situation. Indirect discrimination is
where an apparently neutral provision, criterion or practice, would put persons having a
particular political view, membership of a trade union, sexual orientation, disability or
age at a particular disadvantage compared to other persons. Harassment and/or
instruction to discriminate against persons for reasons as listed in the WEA section 13-1
(1), e.g. age, are also regarded as discrimination (see section 13-1 (2). In practice, many
aspects of the regulation on employment issues open the way to differential treatment
based on age as detailed below.
- Composition of remuneration, partly depending on age or length of service
Age is an indirect component of remuneration as many collective agreements take
account of seniority as an element of pay level. The argument for a pay rise on the
grounds of seniority is increased experience over time. Age in itself is not the reason,
although it is a natural side-effect (see the Tribunal’s cases LDN-2008-12 and LDN-200832). Here the complainants blamed lack of development of their salary level on age
discrimination. In neither of these cases did the Tribunal find any circumstances
indicating age discrimination.
- Seniority-linked bonus payments
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I am unaware of bonus agreements clearly referring to age as a factor for awarding bonus
payments. Most bonus payments are linked to achievement regardless of age.
- Holiday entitlements depending on age
The Holidays Act of 29 April 1988 no. 21 (Ferieloven)28 provides for longer vacation time
based on age. Employees who turn 60 during the calendar year in question are entitled to
an additional 6 days’ vacation (see the Holiday Act, section 5 no. 2).
- Privilege to demand shorter working hours, depending on age
None of the sections of the Working Environment Act refer specifically to an age-related
right to demand shorter working hours. Shorter working hours may, however, be granted
for health reasons or according to social needs (see section 10-2).
- Maintenance of contractual remuneration despite job transfer due to age-related
diminishing capabilities
No such provisions are regulated under Norwegian law.
- Availability of further on-the-job education or training
Further on-the-job education or training should be available to all employees regardless
of age. However, judging from newspaper articles, this is a sore point in practice as the
reasons for granting further education or training may vary on the side of the employer.
In reality though, older employees are overlooked here. Ultimately, a lack of education or
training may be the reason why some are selected in down-sizing operations.
17. Effects of prohibiting age discrimination on termination of employment (exemplary
headings for orientation purposes)
A new addition to the Working Environment Act, under section 15-13a, was enacted on
19 June 2009 no. 39, effective as of 1 January 201029. It states that the employment
relationship may be terminated when the employee reaches the age of 70. Retirement
prior to that age may be based on other grounds when the earlier retirement age is
28
http://www.arbeidstilsynet.no/lov.html?tid=90345
29
http://www.lovdata.no/all/hl-20090619-039.html
16
reasonable and proportionate under the circumstances set out in section 13-3, paragraph
2. The employee is entitled to at least six months’ written notification of the date of final
termination of employment (see new section 15-13a, paragraph 2). Prior to such
notification, the employer should insofar as possible invite the employee to discuss the
future, unless the employee prefers not to (see section 15-13a, paragraph 3). Any
employee wishing to retire is similarly required to give a minimum of one month’s prior
notice, but it need not be in writing (see section 15-13a, paragraph 4).
- Protection against dismissal due to old age or length of service
It is a general principle in collective labour law that length of service/seniority be the basic
premise in down-sizing operations. Last in is first out… This principle does, however,
yield weighty reasons on the side of the employer to claim the need for specific skills,
expertise, etc…
- Age-related loss of capability as a valid reason for dismissal
Under present legislation, the loss of capability is a valid reason for dismissal should the
employee no longer be able to perform the work due to failing health. Dismissal cannot be
the first option: the employer is bound by numerous obligations to facilitate the
employee’s remaining at work despite health issues (see the Working Environment Act,
Chapter 4, as well as the provisions of the National Insurance Act of 28 February 1997 no.
9 (Folketrygdloven).
- Age-related composition of compensation for termination of employment contracts
Compensation for termination of employment contracts does not come under the
Working Environment Act. However, it can be mutually agreed on a contractual basis by
the parties in the event of termination of the employment contract. Such agreements may
include an age-related component, with variable compensation arrangements to take
account of the employee’s difficulty in finding new work. In some professions or
occupations advanced age can prove more challenging and this may result in higher
compensation.
- Age-related justification for concluding fixed-term contracts
Age is not a valid reason for concluding a fixed-term contract (see the Working
Environment Act, section 14-9).
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18. Is there a mandatory retirement age set by law? Are social partners competent to set
(or alter) age limits for retirement? If so, which age limits are admissible and which
grounds of justification are acknowledged for imposing a mandatory retirement age?
The retirement age according to the National Insurance Act of 28 February 1997 no. 9
(Folketrygdloven) is 67 years, but this is not formally the age limit by which a person must
retire. It is only the earliest age at which a person may receive old age retirement
benefit(s). According to the WEA, employees are entitled to retire at the age of 67
although under no obligation to do so. When an employee reaches the age of 70, the
employer may terminate the employment contract without justification. However, if no
notification of termination is given by either party, the employment contract continues to
run (see the WEA, section 15-7 (4). This practice was amended as of 1 January 2010
following an addition to the WEA, section 15-13a, enacted on 19 June 2009 no. 3930, clearly
stipulating that the employment relationship may be terminated by the employer when
the employee reaches the age of 70, as mentioned above under question 17.
Public employees can retire prior to the ‚normal‛ retirement age of 67/70 when a specific
retirement age for certain professions, such as police, military and pilots, is set down in
specific Acts (see, for instance, lov om avtalefestet pensjon for offentlige tjenestemenn m.fl. om
fratredelse etter 62 år jf pensjonskasseloven § 21 tredje og fjerde ledd om fratredelse etter fylte 65
år.) Employees concerned by these special retirement age provisions are under obligation
to leave when the set age limit is reached and also receive a pension as of that time.
The right to retire earlier than the age specified in the National Insurance Act has also
been introduced under a special type of national collective agreement scheme. It is known
as ‚Avtalefestet Pensjonsordning‛ (AFP), i.e. Contractual Pension Scheme. The AFP must be
agreed on by the national employees´ and employers’ organizations. The Norwegian
State has guaranteed that it will contribute to financing of the scheme via the Act on State
Contributions to the Contractual Pension Scheme of 23 December 1988, no. 110 (Lov om
statstilskott til ordninger for avtalefestet pensjon 31), (see section 1 thereof). The lowest age
30
http://www.lovdata.no/all/hl-20090619-039.html
See Lov om statstilskott til ordninger for avtalefestet pensjon: http://www.lovdata.no/all/hl19881223-110.html
31
See also: http://www.nav.no/page?id=399
18
threshold for contributions to the scheme according to this Act is 64 years. The State
contribution constitutes 40 % of the cost of the pension scheme in question for persons
having reached the age of 64 (see section 6). In practice, most employees who benefit from
the AFP arrangement do so from the age of 62 following a contractual agreement with
their employer.
Some employees to whom these special retirement ages apply, either through legislation
or collective agreements, have contested these age limits before the Courts, but so far the
employees have lost in all but one case. The Gulating Appeal Court judgment in case LG2009-41184 of 6 November 2009 concerned the legality of the special retirement age of 60
for helicopter pilots according to the collective agreement32. The pilots argued that this
age limit violated the prohibition against age discrimination under section 13-3 of the
Working Environment Act, as well as Directive 2000/78/EC. The Appeal Court found that
the retirement limit was not age-discriminatory, that formal notice of termination was not
necessary under the terms of section 15-4 of Norway’s Working Environment Act, and
that the pilots were not entitled to continue in their positions.
As for the Asker and Bærum Municipal Court case 08-195258TVI-AHER/2 of 15 July 2009,
it concerned a group of airline pilots, all aged 60 or over, claiming to have been
discriminated against because of age as they all received notice of termination during
their company’s down-sizing operation. The employer’s argument was based on the fact
that all pilots over 60 were entitled to pensions, in contrast to younger pilots who, if they
lost their jobs, would not only be unemployed but have the added difficulty of keeping
up their licences given the current employment market for pilots. The Municipal Court
found that dismissing the older pilots rather than the younger ones was both necessary
and reasonable within the limits of section 13-3 of the Working Environment Act. The
case is being appealed.
19. Are there incentives to induce older employees to leave even before they reach the
mandatory retirement age?
It is not known at present whether or not the judgment will be appealed before the
Supreme Court.
32
19
There are no openly stated incentives in legislation or collective agreements to induce
older employee to leave before they reach the mandatory retirement age although in
practice this is at issue.
There have been reports of incidents where older employees are pressured to accept an
AFP solution as described above under question 18. This is especially so in companies
undergoing various down-sizing or restructuring operations. I have no specific figures or
surveys to refer to, but the problem has been the topic of newspaper articles.
The (trade) unions fought hard to have the AFP agreement introduced and they will fight
hard to have it maintained, seeing this as the ‚only‛ solution for workers who have
endured tough physical working conditions from a young age. On the other hand,
Norway’s government and parliament do agree that as a general principle there must be
change in the years ahead so that more people remain in employment longer. This was a
much-debated issue during the major reform of the National Insurance Scheme where the
aim was to preserve a viable welfare system as growing numbers of the population retire
while fewer join the workforce. There are currently no signs or calls for the AFP
agreement to be amended in the near future.
There is another category of employees who do experience some pressure to leave active
employment before the legal retirement age, i.e. the vast group of care workers/nurses
with health problems. These employees feel that drawing a disability pension is better
than further burdening their fellow workers when they are no longer able to keep pace. It
is too costly to hire additional staff when one person lags behind. I have no specific
surveys to refer to, only my discussions with the National Nurses’ Association.
20. Please mention any additional topics characteristic of the anti-discrimination
legislation in your country.
a) A new Act compiling the various legislative measures concerning different grounds of
discrimination is proposed in the White Paper NOU 2009:14: ‚Et helhetlig
diskrimineringsvern‛33. The suggestion is to embody most of Chapter 13 of the WEA in this
33
http://www.regjeringen.no/nb/dep/bld/dok/nouer/2009/nou-2009-14.html?id=566624
20
new Act (see section 4 of the proposal for the new Act). The deadline for submission of
public comments was 30 December 2009. A proposal for new legislation is not expected
before June 2010 at the earliest. However, it is proposed that the prohibition against age
discrimination remains regulated under the Working Environment Act, but limited to
cover active working life cases only.
b) Multiple discrimination, intersectional discrimination, and age discrimination
combined with other grounds protected against discrimination, are not specifically
governed under present legislation, nor are there currently proposals to regulate these
issues under a new Discrimination Act.
c) The reform of the National Insurance Scheme aimed to preserve a viable welfare
system as growing numbers of the population retire while fewer join the workforce. There
have been suggestions to abolish mandatory retirement ages, as well as to introduce
various options for flexible/part-time time working arrangements. No specific legislative
proposals have so far been forthcoming.
d) A final observation is that because protection against age discrimination is limited to
active working life, younger persons – and discrimination against them – are being left
out of the picture. The most serious examples concern students who do not have the same
possibilities as employees to file complaints, e.g. in cases where environmental conditions
in schools are poor, with harassment between students, etc... The issues at stake may be
the same, but there is no equality regardless of age when it comes to the means available,
i.e. complaints and enforcement procedures, to address problems. This stems from the
fact that the very structures of systems are constituted differently for different age groups.
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