Cecilie Amundsen Raa
It is not uncommon for employers to find that an employee's conduct or behaviour during free time undermines the necessary trust in the employee and possibly also breaches the duty of loyalty in the employment relationship. In such cases, can the employer impose an employment-law sanction, such as dismissal or even summary dismissal in accordance with Norwegian law and case law?
The starting point is clear: employees have full control over their free time, and conduct or behaviour during that time is ordinarily not the employer's concern (see the Supreme Court judgment in Rt-1959-900). However, Norwegian courts have in some cases upheld employer sanctions for conduct that occurred during free time, provided that "particularly strict requirements" are met (see the Supreme Court judgment in Rt-2009-685, paragraph 52)
Frostating Court of Appeal judgement (LF-2025-15689-2)
In the Frostating Court of Appeal judgment referenced LF-2025-15689-2, the question was whether an employee of a cleaning firm could be summarily dismissed for thefts from a grocery store that were committed while the employee was working at that store for a different employer, also a cleaning firm. The acts that formed the basis for the summary dismissal were therefore not committed during work for the employer who issued the summary dismissal, nor during that employer's working hours. The court nevertheless concluded that the strict threshold for summary dismissal, and the "particularly strict requirements" applying to employment-law sanctions for conduct outside working hours, were satisfied. The summary dismissal was therefore held to be justified and lawful.
The court especially emphasised two factors in its assessment. First, the thefts occurred during work for another employer engaged in the same line of business; the court considered that this diminished the significance of the fact that the acts were not committed within the employment relationship that gave rise to the summary dismissal. Second, the court placed weight on the fact that the actions were closely connected to the employee's performance of work. For the court, this factual connection between the conduct and the work performance was largely decisive.
The court also noted that it was the employer's customers, not the employer directly, who would be harmed if the conduct recurred. The actions therefore represented a greater risk and vulnerability for the employer than would have be the case had the conduct occurred within the employer's own business. The court further commented that the work, which took place outside the customers' opening hours, was of such a nature that it required absolute trust in the employee, which had now been broken.
What does the judgement mean?
The judgment contributes helpful clarification of both the threshold for summary dismissal and the threshold for employment-law sanctions related to conduct occurring during an employee's free time. The court's focus on the degree of factual connection between the acts and the performance of work is well suited to accommodate employers' legitimate and reasonable need to react to off-duty conduct that undermines the necessary trust in the employee.
At the same time, the decision probably does not relax the generally strict standard that applies to employment-law sanctions for off-duty conduct. The court's conclusion might have differed had the two employers operated in dissimilar businesses with less comparable circumstances and risks. The outcome may also have been different if the factual basis for the summary dismissal had been contested. Although the court did not state this explicitly, it appears to have attached considerable weight to the employee's acceptance of a police fine for the relevant thefts; accordingly, the factual basis for the summary dismissal was not disputed.
