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Råd og tips

Trial Periods

Written by Tekna’s legal department Feb. 23 2021

Trial periods are a common feature of Norwegian employment contracts.

The purpose of trial periods is to establish a limited time period during which an employer evaluates an employee’s suitability for a job as well as their professional competence and reliability. A trial period with a short notice period can also be advantageous for an employee because they can give notice quickly if they don’t like their new job or workplace.

Must be part of a valid contract

A trial period must be agreed in writing when parties are entering into an employment contract. If the employer wants to include a trial period clause after this contract has been signed, it’s up to the employee to decide if this will be done or not. Pre-arranging a trial period that lasts longer than 6 months is not allowed.

With regard to the civil service, a trial period is basically a requirement of every employment relationship (see the Civil Service Act, section 8). However, all civil servants must be informed in writing about trial period regulations before they start working; they must also confirm having received this information in writing.

Trial period length

Pre-arranging a trial period that lasts more than six months is not allowed, pursuant to the Civil Service Act (section 8) and the Working Environment Act (section 15-6). The six-month trial period starts on the date of employment.

Can a trial period be extended?

If the parties want to extend the trial period due to an employee’s absence, this information must appear in the employee’s employment contract. In addition, an employer’s requirement for an extension must be presented in writing to the employee by the end of the trial period. Any extension mustn’t exceed the length of the absence.

Notice period during a trial period

In the private and municipal sectors, a mutual notice period applies for 14 days during the trial period unless a different arrangement has been agreed in the employment contract/collective bargaining agreement. Any notice given during the trial period is effective on the same day it’s given, so that the notice period runs from date to date. A civil servant working in the government sector may be dismissed with a three-week notice period; a longer notice period may be given in special cases.

Written notice

Dismissal during a trial period must be in writing and reach the recipient by the end of the trial period in order for its short notice period to apply. If an employee resigns from their position and there is no written requirement in place, it’s still advisable for them to hand in their written notice so they’ll have proof that this has been done.

Requiring a reason for dismissal during a trial period

Generally speaking, jobs that have a trial period apply to employees who are permanently employed when starting their first day of work. The employment relationship then continues automatically after the trial period is over – unless an employer hands an employee a written dismissal by the end of the trial period. The idea here is that during a trial period, the parties in the employment relationship should be able to end their relationship faster than usual (however, this is reflected in the dismissal threshold during the trial period).

In the private and municipal sectors, any dismissal by an employer may be justified by their employee’s suitability for the work at hand, professional competence or reliability (see the Working Environment Act, section 15-6). For instance, arriving late for work, taking too many/lengthy breaks and poor customer service are all circumstances included in the provision. In Rt-2003-1071 and subsequent rulings, the Supreme Court states that in relation to trial periods, both the purpose of the provision and right to issue a dismissal during a trial period, along with the fact that there is separate legislation regulating the relationship, means that «the dismissal threshold in these cases is something – not completely insignificant – lower than what would otherwise apply.»

A public sector employee may therefore be dismissed «to the degree that this employee cannot adapt to the work or cannot satisfy reasonable requirements for competence or reliability» (see the Civil Service Act, section 8 nr. 2). Civil servants who are employed with the obligation to complete a certain type of training must be dismissed with a three-week notice period if their training has not been completed in a satisfactory manner (see the Civil Service Act, section 8 nr. 3). In addition, a civil servant may be dismissed if they do not demonstrate suitability for their service area (see the Civil Service Act, section 19).

In cases where a dismissal is issued for other reasons than appear in the Working Environment Act and Civil Service Act, the usual regulations on dismissal apply. A justifiable basis for dismissal during a trial period must be connected with legal thresholds, and an employer must prove through a court hearing what the dismissal is based on so that courts can «verify the employer’s assessments».

Not like a surprise

A dismissal must not come as a surprise to an employee during their trial period. Beyond a situation where an employee has seriously breached their employer’s trust, dismissing an employee normally requires that they have been assessed, corrected and shown several times over that they are not performing at an acceptable level in order for there to be objective grounds for their dismissal.

The Supreme Court has ruled that there is a requirement for an employee to be given a real opportunity to try and correct their behavior (Rt-2003-107). Consequently, during their trial period, an employee must be given special instruction and training in addition to performing their assigned tasks. There also appears in the Civil Service Act (section 8, first paragraph) a provision stating that a civil servant must be given the necessary guidance and assessment of their work during their trial period. Further, this employee must be given the possibility of adapting to and performing their work in accordance with their employer’s wishes. An objective assessment in turn depends on the job posting, nature of the work, type of position, employee’s education/ experience as well as the job description itself. During an assessment of a dismissal’s validity, there will also be a focus on whether meetings have been held to discuss the situation before a dismissal was issued. While failing to have these meetings does not invalidate a dismissal, it is a point to consider when determining if a dismissal has been objectively justified, pursuant to the Working Environment Act’s legislative history (Ot.prp.nr.50 (1993-1994) page 183) and Supreme Court rulings (Rt-2003-107).

The conditions described above imply that during a trial period, the parties are encouraged to assess the situation actively because this will help an employee be able to enter into another employment relationship quickly, in this way making themselves more attractive as a candidate for new jobs.

With regard to the intensity of courts’ adjudication processes, these courts must show restraint when reviewing an employer’s discretionary assessment of the extent to which their employee functions in their position – as long as the facts on which their dismissal is based are found to be conscious and relevant (see judicial precedent). The same point applies to making a discretionary assessment of an employee’s suitability for a position and what the requirements for suitability consist of.

New trial period with the same employer

If an employee transfers to a new position within the same organization, it might be possible for them to negotiate a new trial period. Doing so requires that the tasks this employee is performing in the new position are distinctly different from those in the old one, so that their employer isn’t able to determine if the employee isn’t able to perform satisfactorily in the new position.

It will not normally be required to take as long as six months to determine whether an employee is functioning satisfactorily in a new job based on the fact that their employer already has experience seeing how they perform.

It is assumed that a new trial period won’t take place without allowing the employee to return to their own position should they not perform satisfactorily in the new one.

Downsizing during the trial period

An employer can also take steps towards dismissing employees who are in the middle of a trial period if general conditions for the legal provisions on dismissal are met (for example, bankruptcy and other types of busines failings). This type of dismissal normally comes as an unwelcome surprise for new employees.

Tekna recommends that when members are entering into employment contracts, they make sure that they understand the proviso which states that a standard notice period must be used for dismissal if a company must downsize during an employee’s trial period. Yet if their notice period can be extended to three months, employees will then have more time to find another job than if they’d had only the trial period’s short notice period.

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