An employer was correct in their calculation of salary during a suspension

A nurse employed in a part-time position was suspended when she became the suspect of a criminal case. During the suspension the employee received the salary payment that was agreed to in the contract. The employee often took extra shifts prior to the suspension, which significantly increased the monthly salary. Therefore, the employee claimed the salary should be calculated on an average of the actual income.

The employee argued that “salary” was to be understood as the actual income an employee receives, in the same way as with temporary layoffs, holiday and sick leave. The employee supported this with preparatory works of the law, where it showed that suspended employees should have the same economical position as when in work. The employer argued that the employee was not obligated to take on extra shifts and that salary had to be based on the contract.

The main question for the Supreme Court to decide was whether the extra shifts were to be included in the calculation of salary during suspension.

The main rule is to stick to the contract

The court found that the employee’s demand was strengthened by assessing the reasonability of the case, as the agreed salary was considerably lower than the monthly income. Nevertheless, the court emphasized that as a part-time employee, the employee could more easily accept and decline shifts than a full-time employee.

As a part-time employee with extra shifts over a long period of time, the employee would be entitled to an increased position percentage, so that the actual working time and the actual size of the position concurred. This would also lead to a higher agreed salary. However, the employee never made such a request.

Paid salary during suspensions are based on the salary at the time of suspension. So, the main rule is the agreed payment in the contract at the time of suspension. If this was not to be the main rule, the alternative would be to look at the actual salary in the month of suspension. The court found that such an interpretation could lead to random and unfair results when the salary varies monthly, which supported the employer’s claims.

Further, both the preparatory works of the law and judicial literature expressed that special salary, that is not frequent nor part of a fixed plan, cannot be covered by the term “salary”. For example, this includes overtime compensation. Therefore, the court concluded that voluntary extra shifts could not be included in the calculation of salary during suspension.

IUNO’s opinion

The judgement is an important clarification of an uncertain legal question. Contrary to holiday pay, sick pay and salary during temporary layoffs the judgement established that “uncertain” payments, like voluntary extra shifts, are not to be included in the calculation of salary during suspensions.

IUNO recommends that companies seek consultancy in regard to which payments are to be included in the calculation of salary during a suspension. Even though this judgement clarifies this specific question, the question of which payment are to fall under the understanding of “uncertain” will be a question of interpretation. This might lead to some uncertainty.

[The Norwegian Supreme Court’s judgement HR-2020-1157-A of 3 June 2020]