Temporary setback for temporary employee

A municipality temporarily employed a coronavirus tester to work at mobile test stations. After one and a half years of employment, the employment relationship was not renewed because of a decreasing infection rate.

Shortly after the end of the employment relationship, the company listed a temporary position as a lawyer. The employee had recently completed his law degree and applied for the position. As he had previously been temporarily employed with the company, he claimed to have a preferential right to the position. The company disagreed and gave instead the position to a job applicant with 20 years of experience with law in the public sector.

The company preferred experience

The court concluded that the employee had preferential rights for positions within the company but not a preferential right to the specific position. The reason was that there was no similarity between the work tasks of his temporary position and the position he applied for.

The court emphasised three factors. First, the objective of temporary employees’ preferential rights is to prevent companies from using temporary “redundancies” as an alternative to terminations that would be unjustified. The employee’s employment, however, only ended because of a decrease in infection rates and was unrelated to the new position.

Second, the public sector has a principle that the most qualified job applicant should be given the position. In this case, there was no question that the employee was far from the best qualified, as he had no previous experience.

Last, the scope of the preferential right was not clear. For part-time employees, the preferential rights only apply to positions with similar work tasks to the original position. The court concluded that the same has to apply to temporary employees, as temporary employees have no reason to have better rights than part-time employees.

IUNO’s opinion

This case gives important guidance on when a temporary employee has preferential rights and to which positions. The objective for the preferential rights of permanent employees is the same as for temporary employees when terminated due to company circumstances. As such, this case could suggest that employees terminated due to redundancy will only have a preferential right to similar positions.

IUNO recommends that companies carefully apply the part-time rules for permanent and temporary employees’ preferential rights for the time being. The specific circumstances will always play an important role. In this case, it was clear to everyone that the employment ended due to a justified cause, the two positions had no similarities, and the principle of qualification was added significant weight.

[The Norwegian Borgarting Court of Appeal’s judgement of 30 October 2023 in case LB-2023-44825]