The Civil Servants Act was introduced in 2017, replacing the former Civil Service Act from 1983.
In this section, we will explain the main features of this act and the arrangements that apply to employees in the government sector. Civil servants (embedsmenn) are a distinct group of employees within the government sector. We will not go into detail here about the specific rules that apply to civil servants.
What does it take for an employer to terminate employment?
Dismissal can either be based on circumstances related to the organisation itself or on circumstances for which you, as the employee, are responsible.
Dismissal due to organisational circumstances - section 19
An employee in the government sector may be dismissed when the termination is objectively justified by circumstances related to the organisation. As a general rule, this should be interpreted in the same way as in the private sector. However, the preparatory works to the act indicate that four specific situations are intended to be covered:
- General cuts in government funding
- Tasks disappear as a result of restructuring and efficiency measures
- Funding for externally financed positions is withdrawn
- The organisation relocates and the employee does not wish to move
Other suitable work
Section 19, second paragraph, specifies that a dismissal is not objectively justified if the employer has other suitable work to offer. In other words, if a dismissal is based on one of the circumstances mentioned above, it is not considered justified if the employer can offer you other tasks.
It is a prerequisite that you have the qualifications required for the position.
The preparatory works to the act state that the employer is not obliged to create a new position or combine tasks to construct a role.
The regulation to the act, section 7, provides further clarification on what can be considered other suitable work. Among other things, it is specified that a higher-ranked position does not qualify as other suitable work. If you are in doubt about this issue, we recommend that you contact us for an assessment of your case. The regulation also clarifies that the offer of other suitable work does not apply to employees dismissed from fixed-term positions, training positions, apprenticeships, or positions in the Armed Forces as officers or enlisted personnel.
Balancing need and disadvantage
With the new Civil Servants Act, a provision was introduced requiring a balance between the organisation’s need to terminate employment and the disadvantages imposed on the employee through dismissal. If you receive a notice of dismissal, you can appeal it. In such an appeal, the appeals body must assess this balance of disadvantages. The appeals body’s decision on this matter is binding. In other words, you cannot take this question to the courts (unlike what applies in the private sector).
preferential right
If you are dismissed due to organisational circumstances, you have a preferential right to be considered for other positions in the government sector that are advertised. This is often referred to as external preferential right. We will explain this in more detail later in the article.
Dismissal due to the employee’s circumstances – section 20
A dismissal can also be based on circumstances related to you as the employee. A dismissal may be objectively justified if you:
- Are unable to resume your work due to illness
- No longer possess the qualifications required for the position
- Are deemed unfit for the position due to persistent inadequate work performance, or
- Have repeatedly failed to perform your duties
Illness
If the dismissal is based on illness or lack of qualifications, you must, if possible, be offered other suitable work before the dismissal is issued.
When it comes to illness, there is another practical rule that applies: During the first year of sick leave, you have absolute protection against dismissal. This rule is found in section 15-8 of the Working Environment Act. (The fact that the rule also applies to the government sector follows from section 21 of the Civil Servants Act.) In the government sector, it is common practice that employees have protection against dismissal for two years after the onset of illness.
However, there is an exception: If you have become permanently 100 per cent unable to work and therefore cannot resume your duties, the conditions for dismissal will be met even if two years have not passed.
It is also important to remember that the employer has a duty to facilitate the return to work for employees on sick leave as much as possible. If, with some adjustments, you would be able to return to work, there will likely not be a valid reason for dismissal. If the employer wishes to dismiss you due to sickness absence, they must document that they have attempted individual accommodation first.
Lack of qualifications
This condition covers both situations where the employee no longer possesses the qualifications required for the position and cases where qualification requirements have changed. Dismissal may, for example, be objectively justified in cases of loss of a certificate, licence, authorisation or security clearance, among others.
Unsuitability
For the criterion of inadequate work performance, the law requires that this is “persistent”. In the previous act, the criterion was “permanently unfit”.
Breach of service obligations
This provision did not exist in the former Civil Service Act. Here, the criterion is that the employee has “repeatedly breached their service obligations”. A concrete assessment must be made in each case of what can reasonably be expected of the employee. The evaluation must consider both the quality and quantity of work, as well as cooperation and dialogue with managers and colleagues. A single breach is not sufficient. Such matters should instead be addressed through disciplinary action or a formal warning.
Examples of breaches of service obligations include violation of the duty of loyalty, improper behaviour or conduct, or persistent and irreconcilable cooperation problems. The threshold for dismissing an employee is high, and the employer must be able to provide documentation for the circumstances invoked.
Notice periods
Notice periods in the government sector depend on how long you have been employed. If the employer terminates your employment, the notice period is:
- one month during the first year of employment
- three months after one year
- six months after two years
If the employee resigns, the notice period is:
- one month during the first year
- three months thereafter
Please note that in the government sector, notice periods run from date to date, unlike in the private sector where the notice period often starts on the first day of the month following the termination.
Preferential right to employment in the government sector – section 24 (external preferential right)
If you are dismissed due to organisational circumstances, you have a preferential right to other positions in the government sector – what we often refer to as external preferential right.
For this rule to apply, you must have been continuously employed in the organisation for at least 12 months during the last two years. There is no distinction between permanent and temporary employment.
The preferential right applies from the date you are dismissed and for two years after your notice period has expired.
The preferential right lapses if you do not accept an offer of employment in a suitable position. This also applies if the offer is for a new permanent position within the organisation from which you were dismissed.
You need to follow up yourself
The employer has no obligation to offer you a position on their own initiative. In practice, this often means that you must apply for a position that is advertised. When doing so, you can state that you believe you have such a preferential right. If you meet the qualification requirements set by the employer, you must be hired, even if there are other applicants who are better qualified than you. If there are several applicants with preferential rights for the same position, the one who is best qualified must be hired.
There are also supplementary regulations that make certain exceptions to the preferential right. These are set out in section 8 of the regulation. Among other things, the preferential right does not apply to training positions or fixed-term positions, positions of higher rank, or positions such as professor, docent, associate professor, or senior lecturer, unless the employee has been dismissed from such a position. The preferential right also does not apply to temporary employees, including those in fixed-term or training positions.
Who can make decisions on dismissal, and what are the rules for case processing?
It is the Appointment Council that makes decisions on dismissal. This follows from Section 32 of the Civil Servants Act. This is the same body that handles recruitment in the state sector. The Appointment Council is a collegial body composed of representatives of the employees and the employer within the organisation. In addition, the council is chaired by a representative appointed by the employer – see Section 6 of the Civil Servants Act.
A decision on dismissal is defined as an individual decision under the Public Administration Act, and therefore the rules on case processing in the Public Administration Act also apply to dismissals.
Advance notice
An advance notice must be sent before a decision on dismissal is made. This requirement is set out in Section 16 of the Public Administration Act. The advance notice must include information about the facts that form the basis for the employer’s preparation of dismissal and the legal grounds that will be used as the basis for the decision. It must also inform you that you have the right to be represented by an agent and that you have the right to access the case documents, see Section 18 of the Public Administration Act. You must also be given the opportunity to present your views within a specified deadline. The law does not state how long this deadline should be.
Right to present your case
You have the right to present your case orally to the Appointment Council before the council makes its decision. Here too, you have the right to be assisted by a union representative or another adviser.
Right to appeal
If the Appointment Council decides on dismissal, you may appeal the decision to a higher authority. This follows from Section 33 of the Civil Servants Act. The deadline for lodging an appeal is three weeks from the date you receive notification of the decision, cf. Section 29 of the Public Administration Act.
The appeal body may review all aspects of the decision, including the procedure, the facts, the application of the law, and the exercise of administrative discretion.
If the appeal body upholds the dismissal decision, you may bring legal action to have the legality of the appeal body’s decision reviewed. If you demand reinstatement, the deadline for filing a lawsuit is eight weeks from the date you were notified of the decision. If you only wish to claim compensation, the deadline is six months.
Special rules for civil servants
Civil servants enjoy constitutional protection against dismissal. This follows from Article 22 of the Constitution of Norway. Civil servants working in the offices of the Council of State or in the diplomatic or consular service, senior civil authorities, heads of regiments and other military corps, commanders of fortresses and senior officers on warships may be dismissed by the King. Other civil servants, such as professors, may only be removed by a court judgment.
Section 28 of the Civil Servants Act states that a civil servant may be dismissed by a court judgment if they prove to be permanently unfit to perform their duties properly, or if they do not meet the necessary or valid prescribed conditions for holding the position.
