Intellectual Property Rights in Employment
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Employment in the public sector
Written by Tekna’s legal department
Modified: Feb. 22 2021
Appointments made in the public sector are more regulated than those made in the private sector. This applies to the hiring procedure and process as well as posting available positions. There is also a qualification principle that applies to the public sector’s hiring process.
There are several laws that regulate hiring in the public sector. First, there are Public Administration Act requirements that dictate how each appointment is processed. The law on public employees – hereafter called the Civil Service Act – also regulates how the employment process is to be completed. Secondly, organizations develop their own personnel regulations, including a description of their hiring procedures. There are strict requirements concerning how available positions are to be posted. Last, but not least, the qualification principle applies in the public sector, meaning that the candidate who has the best overall qualifications is the individual to be hired for the position.
Previously, the Civil Service Act of 1983 regulated hiring rules for appointing civil servants. Starting in 2017, we’ve gotten a new civil servant law that applies to all public sector employees. The law also applies to officials wherever this is explicitly stated. (But we don’t cover any rules concerning these officials in the following paragraphs.)
Public advertisements
In accordance with the Civil Service Act, section 4, all civil service positions are to be advertised publicly unless a different law, regulation or collective agreement applies. This principle is closely related to the qualification principle described below. It’s important that the most qualified candidate is offered the available position. This is most easily achieved if positions are advertised publicly so that all interested parties are given the opportunity to apply for the position.
While exceptions may be made regarding public advertisements, there must be a legal basis for doing so through laws, regulations or collective agreements. Examples of this type of legislation (section 7) include the law’s first paragraph stating that it’s possible to make an exception for, among other things, requiring that temporary positions lasting up to six months be advertised publicly. The law’s second paragraph allows exceptions to be made in an organization’s personnel regulations for temporary positions lasting up to one year. A central collective agreement has also been entered into regarding the opportunity to deviate from the requirement to advertise publicly during reorganizations (please refer to the separate agreement in point 9.25 in the State Personnel Handbook).
Previously, there was the opportunity to make exceptions from the advertising requirement in organizations’ personnel regulations; however, a new law has removed this possibility.
A job posting should contain at a minimum:
- The work tasks associated with the position
- Educational requirements, experience and personal characteristics
- Remuneration
- Any other possibilities for other available positions in cases of internal promotion
- Contact person
- Application deadline
Qualification principle
The qualification principle is legislated in the Civil Service Act, section 3, where the following is stated:
- "The most qualified applicant is to be hired for or appointed to an available position or office unless an exception has been made by law or regulation."
- "When evaluating who is the most qualified, emphasis is to be placed on candidates’ education, experience and personal suitability in combination with qualification requirements that appear in the job posting."
The first paragraph outlines the principle that the most qualified applicant is to be appointed, unless an exception has been made by law or regulation. Examples of these exceptions may be rules on preferential rights to a new civil service position in accordance with the Civil Service Act, section 24. The qualification requirement may also be deviated from for the benefit of applicants who are disabled in some capacity (please refer to regulations, section 6).
The meaning of the qualification principle is more closely defined in the second paragraph. It is the requirements in the job posting itself that form the basis for evaluating applicants, and it is the employer who determines which requirements are to be listed in the job posting. Any formal requirements for education and experience must be documented through certificates and diplomas. An applicant’s personal suitability is a subjective factor which is relevant to emphasize, including their ability to collaborate, manage, achieve results, etc.
Although personal suitability and personal characteristics are concepts that are somewhat vague and indefinable, it should be a prerequisite that they are included in individuals’ applications. To the degree to which emphasis is placed on personal characteristics, the hiring authorities must ensure that all applicants are given the opportunity to produce documentation that verifies their personal suitability and characteristics as they relate to the position for which they’re applying.
Based on the above requirements, an applicant ranking is to be made, and the applicant who is overall the most qualified is to be recommended for the position.
If there are no qualified applicants to a position, and an employer wants to hire someone who does not fulfill the job posting’s qualification requirements, the rules on good hiring practice and equity indicate that the position is to be posted again with the necessary changes made to the qualification requirements listed in the job posting.
According to the Civil Ombud, the fact that an applicant is considered to be «overqualified» does not give any justifiable reason to be passed by for the position.
Security clearance
In positions that require a security clearance, it should be clearly stated in the job posting that clearance/authorization is a prerequisite for being able to assume the position; if necessary, this point should be clarified during an interview.
Right to see the applicant list
You’ll find the rules on applicant lists, extended applicant lists and right to see these lists in Public Law, the Public Administration Act and regulations pertaining to the Public Administration Act.
As soon as the application deadline has passed, an applicant list is to be drawn up in accordance with Public Law, section 25, second paragraph. This list is to contain each applicant’s name, age, occupation/title as well as the municipalities where the applicant lives and works. The applicant list is to clarify the number and gender of the applicants who have applied for the position. Moreover, this list is public. While it is possible to request to publish this information, during the evaluation process, this request will be only considered if it is a civil service position.
Extended applicant list
An applicant for a position has the right to see the other applicants’ names, ages and complete information about their education and experience in the public and private sectors. This has been stipulated by the Public Administration Act, section 15. This information can be collated in a separate list (extended applicant list).
Applicants can thereby read for themselves which qualifications the other applicants have and make an assessment as to whether the qualification principle is being followed as the hiring process moves ahead.
At the time they apply, applicants are not entitled to see other applicants’ applications; however, applicants may demand to see the application of the individual who has been recommended for the position. This right has been guaranteed by the regulations of the Public Administration Act, section 17.
Appeals
Although hiring is a managerial decision in accordance with the Public Administration Act, it is exempted from ordinary appeal procedures (in accordance with sections 2 and 3 of this Act). An applicant who feels passed by during a hiring process can bring this up with the employer, hiring authority or appointment committee only if a final appointment has been made. Although this appeal might make the employer change their viewpoint, if an appointment has been finalized, it is no longer possible to change this decision. An applicant who feels themselves passed by can in this case appeal the hiring decision to the Civil Ombud if they believe that procedural errors have been made during the hiring process. If an applicant believes that any anti-discrimination laws have been broken, the case may be taken up by the Equality and Anti-Discrimination Ombud. As a general rule it is not possible to get a decision that awards one the position, as this can only happen if the individual who’s been offered the position hasn’t yet been informed of the offer. Being passed by can, however, form the basis for making a compensatory claim through the court system.
The Civil Ombud’s webpages have posted a complaint form that can also be used in this type of case. You’ll find a list of previously tried cases that might offer guidance as to what the Civil Ombud focuses on in these cases. Tekna can help by reading and providing insight into your complaint.
Employment plan
The public sector’s employment plan is regulated by the Civil Service Act, sections 5 and 6; through this law employees are given a high level of participation in the hiring process. Employees’ involvement must be seen in connection with the qualification principle, which is widely regarded as a safety mechanism through which employees are involved in the appointment process.
The law is comprised of a process whose first step is to put together a list of qualified applicants. This list is then presented to an appointment committee, which makes the final hiring decision. Previously, although there was the opportunity to have both a colleague-based recommendation committee and a colleague-based appointment committee, a new law did away with this two-armed approach.
Currently, the main rule states that it is the closest supervisor who makes the final hiring decision, see section 5, first paragraph. However, if hiring takes place in a department, it is an appointment committee that makes this decision, see section 5, fourth paragraph. This rule is based on the fact that it is the Minister of State that makes hiring decisions. So by having an appointment committee, employees are assured of having some influence on the hiring process.
In cases involving a recommendation committee, it is to be comprised of an equal number of members from the employer’s side as from the employee’s side. Additionally, this committee is to be led by an individual appointed by the employer; moreover, its composition, manner in which its members are appointed and length of terms as well as number of these committees are all determined in accordance with the State Personnel Handbook.
If there are several qualified applicants for a position, there are usually three applicants selected and ranked in the order in which they should be considered, see section, 5 third paragraph.
As a general rule, the appointment committee must follow the recommendation committee’s decision regarding candidates that have been recommended. If the appointment committee wishes to appoint an applicant who has not been recommended, they must request a new evaluation from the recommendation committee.
The appointment committee also handles decisions about termination, dismissal or disciplinary action (but this is a topic for a different article).
The appointment committee reaches a decision through a simple majority. Previously, there was the opportunity to present a so-called ‘minority-based appeal’ to a superior board, but a new law has removed this possibility.
The appointee is to receive written notification of this decision.
