We often receive inquiries from foreign employers and employees on how consolidation meetings (or discussion meetings) before termination of employment are conducted.
We have therefore written an article that concerns the most common issues we see in connection with consolidation meetings in accordance with Norwegian employment law. The article concerns when and how such meetings are conducted and what are the consequences of defaulting the duty to hold such meeting. However, this article is not a substitute for legal assistance. If you need legal help, please contact us by e-mail, chat, telephone or via our contact form.
1. What is a consolidation meeting prior to dismissal?
A consolidation meeting (or discussion meeting) is a meeting the employer is obliged to hold with the employee before reaching a decision on termination of the employee’s employment. The duty applies both in cases of summary dismissals and dismissals with notice. See more about dismissals here.
Consolidation meetings are individual meetings with the employee and may therefore not be replaced by general information meetings. In addition, there are requirements for how the meeting is conducted for it to be accepted as a consolidation meeting.
The duty of discussion follows from Section 15-1 of the Working Environment Act. The requirement to discuss the matter with the employee is in place for the employer to have a sound basis before reaching a decision on termination of employment. Furthermore, the employee should be given the opportunity to state his or her view before a decision is reached. This applies both to:
- The basis of why the employer is contemplating termination, including facts and assessments that underlie this preliminary conclusion; and
- the consequences a possible termination will have for the employee.
This duty to discuss is in part to avoid terminations based on misunderstandings or misjudgements on the part of the employer. The consequences a termination might have for the employee is also part of the employer’s assessment on whether to terminate. These consequences can be difficult for the employer to be aware of without consulting the employee.
2. What happens if an employer defaults the duty to hold a discussion meeting?
Failure by the employer to hold a consolidation meeting prior to a dismissal is regarded as a serious procedural error on their part. The consequence will often be that the termination is deemed unjustifiable, and thus invalid and indemnifying.
Such is the likely outcome, but it does not automatically happen.
The consequences must be assessed on a case-to-case basis, where relevant factors are the consequences of the dismissal, how clear the grounds for dismissal are and whether the matter has been discussed with the employee in some other form. The employer also has other options in situations where a conciliation meeting has not been held, including the option to withdraw the termination and to pay possible additional costs the employee may have had.
It may also be that the meeting held by the parties cannot be regarded as a discussion meeting pursuant to the Working Environment Act. The reason may be that the employee did not receive due notice as required or did not get sufficient time for preparations. It may also be that no real discussions took place, for example because the employer had already reached a decision on the question of termination of employment.
3. When is a consolidation meeting required?
The duty to hold a discussion meeting will also apply to decisions that are in fact considered terminations or resignations:
- Termination of illegal temporary employment.
- Termination of contractor relationships, where the contractor in fact must be considered to be employed.
- Decisions that fall outside of the employer’s managerial prerogative / right to govern (endringsoppsigelser)
- So-called reclassification cases, i.e. decisions by the employer that in reality (de facto) are regarded as a dismissal or termination
The duty to hold a consolidation meeting only applies to the extent practicable. Furthermore, the duty does not apply if the employee does not want such a meeting. In the latter case, it is required that the employee expressly states that he/she does not want a discussion meeting.
3.1. Consolidation meetings must be held to the extent practicable
The term “to the extent practicable” is to be interpreted strictly. As a rule, practical difficulties on the employer’s side would not be viewed sufficient.
Whether or not a consolidation meeting is practicable must therefore concern circumstances related to the employee, for example that the employee is unreachable for a period of time. Special situations, such as mass layoffs, where individual discussions may be difficult to conduct, may also be such a situation, where individual consolidation meetings may sometimes be replaced with information in general meetings or information letters, etc.
4. What decisions from the employer must not be discussed pursuant to Section 15-1?
The duty of discussion only applies to dismissal / termination or decisions that in reality (de facto) are considered to be a termination / dismissal. A consolidation meeting is therefore not necessary in the following instances:
- In the event the employee voluntarily resigns from his or her position
- If termination is agreed upon by the parties, for instance as part of a written agreement
- For decisions that fall within the scope of managerial prerogative
- For written warnings/corrections etc.
- For termination of legal temporary employment at the end of contract period
- For termination of lawful contractor/client relationship
5. How to prepare a consolidation meeting?
5.1. The employer must summon the employee to the consolidation meeting
Proper discussions at the consolidation meeting require that the employee is given reasonable time to prepare. This means the employee should be notified at least 24 hours in advance. If the basis for termination is more complicated or the facts extensive, information should be given earlier.
If the employee asks for postponement in order to prepare or seek legal advice, the employer should accommodate such request, within reason.
5.2. What are the requirements for the summons?
The summons to a consolidation meeting must be in writing and it must state that it concerns a consolidation meeting pursuant to Section 15-1 of the Working Environment Act.
Furthermore, the summons should state that a dismissal with notice (or summary dismissal, if relevant) is considered and to some extent clarify why the employer is considering such a step.
There is no requirement that the employer sends documentation beforehand, though it might be advisable if the grounds are technical or if the facts are complicated. If the employee requests documentation or elaboration upon receiving the summons, this should be complied with, within reason.
Finally, the summons must contain information that the employee has the right to be assisted by an employee representative or other adviser (e.g. a lawyer).
Even though the summons must be in writing, it needs not be a formal letter. An email is sufficient, and it will also be sufficient if the letter is sent as an attachment to an email.
5.3. Who may be brought along to a consolidation meeting?
The Working Environment Act Section 15-1 states that the employee has the right to be assisted by an employee representative. This term “employee representative” is not to be interpreted strictly and the employee must be given opportunity to be assisted by another adviser – a lawyer, family member, etc. – if he or she wishes.
There is no obligation under the Working Environment Act for the employer to pay for the employee’s adviser, for example a lawyer. However, it is not uncommon for such payment to take place, especially as part of an agreement on termination with severance pay.
5.4. How should the parties prepare?
The employer must prepare the meeting and give reason as to why a dismissal of the employee is contemplated.
Any documentation should be reviewed, and it is often advisable that the employer draft a written script beforehand to make sure that the necessary discussion topics are covered.
The employer must also decide whether or not to procure legal advice in the meeting. If the employer has a functioning HR department, it might not be necessary. The opposite may be the case if the situation is especially complicated or if the employee brings an lawyer.
The employee should prepare by going through the facts that constitute the grounds for a possible dismissal. If the grounds are unclear, the employee should ask the employer to elaborate. It is often also advisable to ask that written documentation is provided beforehand.
In many cases it is advisable that the employee seeks legal counsel or that a worker representative is brought along, so that his or her interests are properly attended to.
6. How is the consolidation meeting carried out?
It is the employer’s responsibility to make sure the meeting is conducted in compliance with Section 15-1 of the Working Environment Act. In practice, this often means that the meeting takes place in the employer’s office and that the employer sets up a protocol documenting that the meeting has taken place and that the parties’ views have been discussed.
A discussion meeting typically lasts between 30 minutes and an hour but may be shorter or longer. Certain topics should be touched upon as part of the meeting:
- An introduction, including the background for the meeting
- The employer’s preliminary evaluation
- The employee’s comments on the employer’s preliminary evaluation
- An exchange of opinions, including which consequences a termination of employment would have for the employee
- Information from the employer on the proceedings going forward and the conclusion of the meeting
After the meeting, the employer must assess whether there is still need for a termination in light of the information that emerged in the meeting.
Occasionally, the parties reach a voluntary agreement of termination during the meeting. As part of such an agreement the employee is often offered benefits like severance pay for agreeing to end the employment relationship on a voluntary basis. The employer may also cover possible legal costs as part of such agreement.
6.1. May the meeting be digital?
The parties are free to agree that the consolidation meeting is digital, for instance through Teams, Zoom, Google meet, etc. During the Covid pandemic this was quite common.
If the employee demands that the meeting is held in person, the employer should comply with his / her request.
A digital meeting may be sufficient if a physical meeting is difficult to carry out within reasonable limits, for example due to long distances. However, the question has not been tried (in court). It is, however, clear that a conference call does not qualify.
6.2. May the employee record the meeting?
It has become more common for the employee to make an audio recording of the consolidation meeting. If the employee has given notice of this, it is unproblematic. In such cases, the employer should usually comply with the request to record the meeting.
However, it is often the case that the employee does not notify of any recording, meaning that a hidden recording takes place. This could become a concern legally, of whether or not the court should allow a hidden recording as evidence, see the Dispute Act Section 22-7. In its evaluation, the court must consider the due clarification of the case, which would allow the recording being submitted as evidence, against the fact that it was obtained in an improper manner.
A hidden audio recording will furthermore raise the level of conflict and undermine confidence. It could also be considered a breach of the employee’s duties in the employment relationship. The employee should therefore preferably seek advice before taking such a step.
6.3. What happens if the employee fails to attend the consolidation meeting?
An employee is not obliged by law to attend a consolidation meeting. If the employee gives advance notice that he or she does not wish to attend, the employer must reach a decision without a consolidation meeting. If there is no consolidation meeting for this reason, it will not be viewed as a procedural error.
If the employee does not attend without prior warning, the employer should seek to clarify the reason for the absence and, as a general rule, try to set up a new discussion meeting.
If failure to attend is obviously part of a delaying strategy and the employer needs a swift decision, for instance if the trial period is about to expire, it might be that a termination can be decided upon without a consolidation meeting. Legal assistance should be sought out by the employer beforehand in such instances.
6.4. What happens if the employee is sick?
A sick leave does not in itself mean that a consolidation meeting must be postponed. An employee on sick leave would as a main rule have an obligation to attend, with the exception among other things being if the sickness itself precludes a proper consolidation meeting.
Despite the above, the employer should as a main rule comply with a request for postponement based on illness, and instead make sure that the meeting is held when the employee returns. The precondition must be that the meeting can be held relatively soon.
7. What happens after a discussion meeting?
The employer has a duty to discuss the matter before termination is decided, meaning that the employer must discuss the issue with the employee and that the employee has a chance to present his or her view.
The employer thus has a duty to discuss, listen to the employee’s views and consider these views, but the employer may nevertheless decide to do something else after discussions and hearing what the employee has to say. The employee does not have to agree with the employer’s evaluation, and the employee does not have any right of co-determination or veto on the question of whether the employee should be dismissed.
If the employer decides to terminate, the termination must be formulated in accordance with the Working Environment Act’s formal requirements. They are laid out in Section 15-4.
The protocol should preferably be written and sent to the employee before a termination is decided upon. It is not necessary that the parties agree on the protocol. The parties may prepare their own, and the employer may set up their own, where the employee’s comments are not strictly necessary.
If the outcome ends with an agreement on termination with severance pay, the agreement with its terms should be prepared and signed as soon as possible, preferably as part of the meeting, or at least within days.
Requirements for justification and negotiations
If an employee receives a termination of employment, he or she may demand a:
- written justification, and
- negotiations pursuant to Section 17-3 of the Working Environment Act.
It may be advisable to seek legal counsel, especially if the termination seems unfair.
For more information on Norwegian labour law in general, visit our information page here.
Svein Steinfeld Jervell