NITO case in the Supreme Court: Who can be employed in a particularly independent position?

In his first job after graduating, NITO's member was employed as a project manager in a construction company where he was constantly being tasked with new projects despite giving feedback that the strain was too great.

- When the employer went bankrupt, he was left with a high hourly balance that had not been compensated, neither with time off in lieu nor salary. He then submitted an overtime claim on the grounds that he was illegally exempt from the working hours regulations in a so-called particularly independent position, says NITO's lawyer Hege Glimsdal.

- When the employment contract you are offered contains a provision that you must be exempt from the working hours regulations, few people dare to challenge this during an appointment process, says Kirsten Rydne, lawyer at NITO.

It also turns out to be difficult to challenge this later. Employees are in a relationship of dependence on the employer and are therefore often reluctant to challenge the employer's decisions.

- This is the reason why the cases that are tried in court are usually brought after the employment relationship has ended, and then as an overtime claim. It is important to be clear that the Supreme Court case is not primarily about the right to overtime pay, but the right to protection of working hours, says Rydne.

Read more: What is required to have a particularly independent position?

The working hours regulations set maximum limits for working hours and minimum limits for time off work to prevent unjustifiable workload and ensure employees' right to a reasonable work-life balance," Glimsdal points out  . 

The provisions shall in principle apply to the vast majority of employees, but the Act makes an exception for employees in a managerial and particularly independent position.

- Simply explained, it is a prerequisite that those who are exempted must be able to regulate their own working hours, says NITO's lawyer.

The idea behind it is that these employees do not need the protection provided by the working hours regulations, because they have a large degree of control when it comes to their own working hours," she explains.

- Employees who are exempted and who do not have a real opportunity to limit their own workload are in practice completely unprotected. The employer does not have the same obligation to keep an overview of these employees' working hours as they do for other employees, and they rarely do so, Glimsdal explains. 

She constantly sees examples of the workload for this category of workers getting completely out of control. 

"This has been high on our agenda for many years. NITO has conducted and won a number of court cases, worked in legal policy, followed up a large number of companies, business groups and individual members with good results, but the problem is persistent," she says.

"There is no doubt that the exception for particularly independent positions has been practiced to a far greater extent than was the intention of the legislator," says Hege Glimsdal.

Limitless working hours are not appropriate. It is in no one's interest that employees are worn out.

Long working days in limited periods can work well, she believes, provided that the employee can get back in with sufficient time off.

"The law provides broad scope to agree on alternative working time arrangements with both the employee himself, union representatives, or trade unions centrally," says Kirsten Rydne.  

In our view, the needs of both employers and employees can be met by exploiting the flexibility inherent in the legislation.

The solution is to be found in the law's framework for working hours and not in the general right to exemption. - If the employer side believes that the room for manoeuvre is too small, this is a political question, Rydne concludes.