The conditions for holding a particularly independent post

The case concerns a claim for compensation for unpaid overtime. An employee was employed as a project manager in a construction company. The question was whether his employment contract was contrary to the mandatory rules on overtime pay in section 10-6 of the Working Environment Act. These rules do not apply to employees holding a “particularly independent post”, see section 10-12 subsection 2 of the Working Environment Act. The principal issue before the Supreme Court was how that expression should be understood.

The Supreme Court concluded that it is not sufficient that a position provides the employee with flexible working hours. To qualify as a particularly independent post, the role must entail clear and manifest independence. A central factor in the assessment is whether the employee enjoys a high degree of freedom to determine the extent of the work and when it is to be carried out. In any event, the assessment must be concrete and based on all relevant circumstances and operating conditions.

The Court of Appeal had concluded that the employee held a particularly independent position. The Supreme Court disagreed. The employee was able to manage the tasks within the various projects and had considerable freedom to determine how they should be carried out. However, he had limited control over his own workload and was not free to decide when the work should be performed. As project manager for the various construction projects, he worked within a framework that in practice restricted his ability to control his own working hours. The judgment of the Court of Appeal was therefore set aside.

The judgment clarifies the criteria for determining whether an employee holds a particularly independent post under section 10-12 subsection 2 of the Working Environment Act.

Area of law: Employment law

Key paragraphs: 30, 36-39, 44-45

Justices: Falkanger, Falch, Berg, Stenvik and Vang.