The notification rules are included in Chapter 2 A of the Working Environment Act, but the Notification Committee has proposed a separate notification act. The idea is that the rules of the Working Environment Act and the new (possible) notification act should apply in parallel. The committee's report on notification has been sent for consultation, and the Ministry is now considering the consultation responses. We are probably one step closer to our own notification law.
GHG has previously presented the Notification Committee's report from March 15, 2018. A review of the report's most central points of view can be read here.
Both current and future notification rules will present an employer with a number of challenges.
When notifying a matter of criticism, the employer must follow up the case on the basis of the correct fact. One seeks to ascertain the fact through evidence, such as messages, audio or video recordings. In difficult cases, there will be words against words, without any kind of tangible evidence pulling in one direction or the other.
In addition, in #Metoo cases there are often different perceptions of the nature of the event (s). Absolutely all the attention of a colleague does not constitute harassment. The boundary between an innocent flirt, unwanted attention and harassment must be drawn. This demarcation must be assessed on the basis of the correct fact. Without proof, however, it is virtually impossible for the employer to identify the correct fact. Unclear fact, which cannot be identified with a sufficient degree of security, will in practice be the biggest challenge for the employer.
In Norwegian law, the principle of free assessment of evidence applies. In notification cases, and especially in cases of #Metoo character, there seems to be a relatively strong will to give one party more credibility than the other. The views here seem to be derived from the protection of whistleblowers. The purpose of the law is therefore to protect the whistleblowers, and this is also the reason for the idea that the whistleblower's statement should be given weight.
The notice itself may trigger demands for action from the employer. If the employer does not take appropriate action against the "accused", there may be a danger that the notifier will take legal action against the employer for breach of a proper working environment. The proposal for the establishment of an alert representative and an alert board may help to lower the threshold for such legal action.
What measures the employer can take against the "complained" employee depends on a specific assessment. As the ultimate consequence of the notification, the "accused" can be dismissed. However, dismissal is not a reasonable measure without clear evidence, and the procedure must be considered in concrete terms, including whether to issue a warning.
Another measure may be termination. A dismissal must be "factual", and the employer must be able to prove / prove that there are incidents that, in the general opinion, constitute violations.
A milder sanction may be relocation or change of position, which in some cases may fall within the employer's right of management. Whether such a change falls within the scope of the governing law must be considered in concrete terms. The right of control is limited by law, regulations, collective agreements and the individual employment relationship (the employment contract). The employment contract, etc. can set counters for any relocation or change of position. In some cases, such measures may be regarded as a termination of amendment, and this will then apply to the same requirements of factuality as to a termination.
As a mild reaction, a warning may be given to the "complained" employee. However, the warning must be substantiated and cannot be based on assumptions and assumptions. In cases where there is a lack of clear evidence, it & #8211; as for dismissal and termination & #8211; be questions whether the warning rules will restrict the free assessment of evidence.
The notification rules present a number of challenges for the employer. The employer must consider and take into account the experiences of the notifier, while the job protection of the "accused" must not be violated. How the balancing is to be carried out depends on specific circumstances. The greater emphasis is placed on the credibility of the notifier, the more the job protection of the "accused" can be weakened. This is especially true in cases where clear evidence is lacking. It is not expected that such issues will be resolved through a separate notification act.
Please contact Attorney Thomas Knutsen or Attorney Madiha Khalil if you have any questions about notifications or need assistance regarding the case. the preparation / renewal of notification routines. We also assist with specific notification issues and how you as an employer should handle critical issues.