A warning will also serve as a clear signal from the employer that if the issue being addressed is not changed or improved, the employee may be at risk of dismissal. However, it must always be assessed on a case-by-case basis whether the matter is serious enough to justify a written warning.
The Supreme Court commented in a 2018 case on the purpose of issuing a warning. The Court stated the following:
"The purpose of a warning will regularly be partly to correct undesirable behaviour, and partly to document that the behaviour has been addressed with a view to later follow-up and possible personnel-related action, including dismissal or summary termination. If a warning has been given, the employee cannot, as a general rule, be dismissed or summarily terminated without something new having occurred, cf. Rt-1982-1729 (page 1735)."
Is the right to issue a written warning legally regulated?
Neither the Working Environment Act nor other labour legislation contains specific provisions on the employer’s right to issue warnings. Warnings are therefore governed by unwritten rules within Norwegian employment law. Case law has established that the decision to issue a warning falls under the employer’s managerial prerogative.
For civil servants, however, the right to issue warnings is provided for in the Civil Servants Act and further regulated in the State Personnel Handbook.
Court practice in dismissal cases related to the employee’s own conduct shows that it is relevant for the assessment of fairness under section 15-7 of the Working Environment Act whether the employee has previously received a written warning about the same matter, including information about the consequences of non-compliance.
A warning may also be taken into account during selection processes in downsizing or redundancy situations. If subjective criteria such as “suitability”, “ability to cooperate” and similar are used, an employee with a warning may be at a disadvantage compared to one with a “clean record”.
A warning may also carry weight in selection processes during downsizing and/or redundancy. If subjective criteria such as “suitability”, “ability to cooperate” and similar are applied, an employee with a warning may easily be at a disadvantage compared to someone with a “clean record”.
For an employer to convince a court that the employee should have understood that continued non-compliance could lead to dismissal, documentation of follow-up in the form of a written warning can be decisive.
When can an employer issue a written warning?
Written warnings should not be used the first time an employee fails to follow established guidelines for performing work in the company or behaves in an undesirable manner. Normally, the process will start with verbal guidance or dialogue in day-to-day interactions or during more formal follow-up meetings. It is only when the employee does not change their behaviour that there will be grounds to emphasise the seriousness of the matter by issuing a written warning.
Practical examples of situations where warnings are often given include:
- breaches of safety procedures
- breaches of the employee’s duty of loyalty
- failure to comply with working hours and similar issues.
Requirements for handling written warnings
As mentioned, warnings are not regulated by law, and the requirements for a written warning have not been clarified in case law. Therefore, there are no formal rules on what may trigger a warning or what a written warning must contain. A warning can thus be given either in writing or verbally.
However, to safeguard the employee’s right to respond, the following elements should be included in a written warning:
- A description of the circumstances on which the warning is based
- A description of how the employer expects the employee to behave going forward
- The consequences if the issues addressed in the warning are repeated (for example, that this may affect the employment relationship)
The content of a warning must fulfil its purpose of correcting undesirable behaviour and ensuring documentation. It should therefore be as clear as possible, indicate the consequences of repeated or new breaches of duty, and specify the behaviour required in the future.
In a judgment from Hålogaland Court of Appeal in 1999, the court stated that the warning given was too “brief and general” and therefore did not give the employee “a real opportunity to improve”.
In a judgment from Nord-Troms and Senja District Court in 2023, the court commented on the requirements for handling warnings:
You must be given a real opportunity to improve
"The court nevertheless believes that certain minimum requirements must apply to the handling of warnings. There must be requirements for proper case handling and for warnings to be issued on a sufficiently investigated factual basis. A written warning is a clear reaction from an employer, which under certain circumstances may lead to dismissal. Although even stricter requirements will apply to the handling of more severe reactions, such as dismissal, the court considers that employers must ensure that the case is sufficiently and properly clarified before choosing the reaction of issuing a warning."
There is no formal requirement that the company’s top manager issues the warning, nor any requirement for prior case handling (such as board consideration).
However, it may be questioned whether the employer should hold discussions with the employee before issuing a written warning. In a judgment from Borgarting Court of Appeal in 2006, the court addressed this issue and stated:
"It would probably have been appropriate for the meeting the director encouraged, where A could choose the time and bring a union representative, to have been held before such a strong reaction as a warning with an indication of dismissal was given."
Does the employee have to accept the written warning?
The employer will normally require the employee to sign to confirm receipt of the written warning, which is quite standard. However, the employee is not obliged to accept the content of the warning.
An employee who believes a warning is unjustified should consider raising the matter with the employer to have it withdrawn or modified. The employee can acknowledge receipt of the warning and note on the document that they dispute the basis for the warning, with a brief explanation.
Until 2018, it was commonly assumed that it was not possible to bring a lawsuit challenging the validity of written warnings under employment law. This was clarified by a Supreme Court ruling in 2018. The case concerned a chief officer who received a written warning from his employer and subsequently filed a claim for compensation and for the warning to be withdrawn.
One of the main questions in the case was whether an employee could bring legal action to challenge the validity of a written warning. The Supreme Court answered this in the affirmative. The decisive factor was that the employee had what is called a “legal interest” in having the matter reviewed by the courts. Following this ruling, it is clear that an employee can take legal action to challenge the validity of a written warning.
In the public sector, an employee can appeal the written warning to the Parliamentary Ombud, which will assess whether the warning was justified. If the Ombud finds that the warning was not justified, it may ask the employer to reconsider the matter.
The usual outcome in such cases is that the employer withdraws the written warning. Several of these cases concern warnings issued after employees made statements in emails to other staff or in newspaper articles, and in its conclusions the Ombud has emphasised considerations such as freedom of expression, the employee’s duty of loyalty and the right to respond.
What happens after a written warning is issued?
The next reaction may be dismissal
When a written warning has been given, the employer will normally follow up with the employee in accordance with what is stated in the warning. If the employer fails to do this and allows new incidents—similar to those previously warned about—to pass without reaction, the earlier warning will lose its value. A warning should therefore be considered a final reaction to the employee’s breach of duty. This principle was confirmed in a judgment from Borgarting Court of Appeal in 2021, where the court stated:
“If an employer has chosen to react with a warning, dismissal cannot be given unless new, blameworthy circumstances occur, see Rt-1982-1729, page 1735 and HR-2018-492-U paragraph 24. After a warning has been issued, the employee must normally be given reasonable time to improve their performance and/or change undesirable behaviour. The purpose of a warning is to give the employee a real opportunity to improve and change their behaviour, see among others ARD-1979-43.”
A written warning can be referred to at a later stage, but its significance will depend on how long ago it was issued. In a judgment from the Labour Court in 2012 (ARD-2012-4), the court addressed this question and stated:
“When the company chose to issue a warning, this means, in the Labour Court’s view, that the matter should in principle be considered settled and concluded with the warning.”
If new blameworthy circumstances arise later, previous warnings may be relevant and central in assessing whether there are grounds for a lawful dismissal or summary termination. However, not every subsequent breach or misconduct will justify reviving earlier warnings and terminating the employment relationship.
Read more about dismissal:
The Labour Court’s statement has also been upheld in later case law, including the aforementioned judgment from Borgarting Court of Appeal in 2021. Here, the court noted that while an employer may change the reaction from a warning to dismissal, “it must be assumed that what is new is of a certain seriousness, also compared with the circumstances that the employer ‘settled’ with the warning.”
Supreme Court practice confirms that a previous warning can lower the threshold for a lawful dismissal or summary termination in cases of new breaches of duty. In a judgment from 2001, the Supreme Court stated:
“When assessing whether breaches of duty by the employee can form grounds for dismissal, it may be relevant whether a warning has been given, making it clear that continued breaches could lead to dismissal.”
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