Time and place for the trial lecture
23rd of November 10:15am-11:00am in Gamle festsal. The title for the trial lecture will be: Coming!
The trial lecture and the disputation can also be followed by zoom.
Adjudication committee
Professor Kurt Weltzien, Norwegian Business School (leader)
Professor Niklas Selberg, Linné university (1. opponent)
Professor Vibe Ulfbeck, University of Copenhagen (2. opponent)
Chair of defence
Vice Dean Ivar Alvik
Supervisors
Professor Marianne Jenum Hotvedt
Professor Johan Giertsen
Summary
We often hear of companies offering ‘severance packages’ when they need to make redundancies. Or of an employee accused of a breach of duty who agrees to the termination of their employment without the employer issuing a notice of termination or dismissal. In such situations, the employee usually receives financial compensation in return for agreeing to the termination of their employment. Such agreements are often referred to as termination agreements and are one of several ways in which an employment relationship can be terminated.
Termination agreements are an alternative to the statutory methods of terminating an employment relationship and are widespread in Norway. However, the world of work is governed by statutory rules designed to protect employees, known as protective provisions. Employers and employees cannot simply agree to waive these; they are invariable. This thesis explores how invariable protective rules affect the rules governing termination agreements.
Which rights can be waived by agreement?
Termination agreements exist in a tension between freedom of contract and protection under statutory employment law. This is because they aim to terminate a legal relationship that is strictly regulated by invariable rules.
Conflicting considerations come into play in this tension. The protective rules should not prevent the parties from finding sound and appropriate solutions, but freedom of contract should not be used to circumvent invariable protective rules either.
This thesis establishes a comprehensive explanatory model for managing the tension between invariable protective rules and freedom of contract. The model is based on four perspectives, which are applied consistently throughout the analyses:
(1) The employee’s varying need for protection at different stages; the employee has a greater need for protection when entering into an agreement to terminate the employment relationship than when the agreement has already been concluded and is to be performed.
(2) The circumstances surrounding the entering into of the agreement; because the need for protection is greatest at the time of conclusion, the specific circumstances surrounding the conclusion are also important. Throughout, this thesis utilises three different typical scenarios for the conclusion of termination agreements: the "confrontation", the "termination package" and the "mutual agreement".
(3) protected interests; it is significant whether the right being waived primarily protects the employee themselves, or whether it primarily protects public or societal interests.
(4) the interplay between different legal bases; due to the tension between invariable protective rules and freedom of contract, solutions to specific legal issues must be found through the interplay between different legal bases, in particular invariable protective rules and general rules of contract law.
Does the employee know what he or she is doing?
Termination agreements entail the employee waiving his or her right to job protection and, where applicable, other rights arising from invariable law.
At the heart of the explanatory model is the question of whether a right under invariable law has arisen in a way that provides the employee with a sufficient overview of the situation. If the answer is yes, the need for a settlement may justify freedom of contract, but the model must be adapted according to the interests protected by the relevant provision. Even if the employee has a clear overview, he or she cannot simply waive rights that primarily protect societal or public interests. In such cases, the waiver is not necessarily legally binding on the employee.
The explanatory model is both robust and flexible. It is robust because it is based on the fundamental characteristics of invariable protective legislation and draws on a broad range of legal sources. It is also flexible, in that the various perspectives together balance the relevant considerations when resolving specific legal issues.
Specific legal issues
Having established the explanatory model, the thesis discusses and addresses a number of specific legal issues concerning termination agreements. The thesis is structured according to the various phases in the ‘life’ of a settlement agreement: conclusion, content and implementation. In this way, the explanatory model is applied, whilst the discussions of specific legal issues also contribute to its development.
Among the legal issues discussed are: What rules apply to the entering into of settlement agreements? How is the content of settlement agreements determined through interpretation, the direct application of invariable law and, where applicable, revision or invalidity? What rules apply if one of the parties breaches the settlement agreement? The thesis also discusses legal issues relating to ‘conditional termination agreements’, where, in exceptional cases, it is permissible to enter into a prior agreement on the waiver of job security with the ‘chief executive of the organisation’. Furthermore, the thesis discusses the question of whether it is permissible to enter into termination agreements with so-called irremovable civil servants, who enjoy special, constitutionally enshrined job security.
The thesis’s contribution to research
Although termination agreements are a widespread type of contract, they have not previously been the subject of any thorough and systematic legal analysis in Norway. The thesis thus fulfils a clear research need, and the explanatory model may contribute to resolving legal issues concerning termination agreements beyond those addressed in the thesis. The explanatory model may also be applicable to other types of agreements entered into in employment relationships, and also to agreements in other fields of law with invariable protective provisions, such as tenancy agreements and consumer contracts.
Contact Information: Simen Lium | Wikborg Rein