Disputation: Marianne Jenum Hotvedt
Cand. jur Marianne Jenum Hotvedt will be defending the thesis: The concept of the employer. An analysis of the foundation for employer obligations for the degree of Ph.D.
Original title: Arbeidsgiverbegrepet. En analyse av grunnlaget for arbeidsgiverplikter.
The disputation will be held in Norwegian.
Marianne Jenum Hotvedt
- Professor Knut Kaasen, University of Oslo (leader)
- Professor Birgitta Nystrøm, Lunds University (1. opponent)
- Partner Jan Fougner, Wiersholm AS (2. opponent)
Chair of defence
The employer is a key concept in legal regulation. Complex regulation and new forms of organisation have obscured the content of this concept. This thesis analyses the concept of the employer by deconstructing it, reassembling it, and taking a closer look at the core of the concept. The thesis shows that being an employer is not a matter of either-or, but depends on the obligations in question. Moreover, the concept of the employer is malleable, and is employed differently in given constellations of power and needs for protection.
The starting-point is that the employer is the dominant party in the employment agreement. However, the concept is interpreted differently depending on the context, with one definition being applied in the Working Environment Act, and different ones in other rules. Moreover, a range of different nuances can be found even within the Working Environment Act. When an undertaking is transferred to another party, it is for example the transfer that makes the receiver an employer. It is also unclear how the employer acquires the position as the dominant party in the employment agreement. What is required in order to make such an agreement binding? What distinguishes employment agreements from other types of agreement? Who is responsible for the different aspects of the agreement? These questions require specific assessments, which cannot be certain, and which are controversial.
Defining the concept of the employer consistently and precisely is, in other words, impossible. The concept's fundamental function is to specify who carries responsibility for the protection of individuals. These obligations may be called employer obligations. The thesis therefore sheds light on the concept of the employer by discussing the foundation for employer obligations.
It begins by discussing different 'initial conditions' in the protective legislation. What triggers statutory employer obligations? The obligations are mainly linked to the relationship in the employment agreement. When an employment agreement is entered into, this generally triggers the full 'array' of employer obligations. However, some employer obligations are generated by other circumstances and are linked to other relationships. Responsibility for operations for instance triggers obligations to protect health and ensuring equal treatment, also for other persons than employees. Certain employer obligations also arise for someone seeking labour, to protect persons looking for work.
The concept of the employer is accordingly redefined as a concept consisting of a core and outer layers, and the thesis helps nuance the concept of the employer by charting the situations that trigger the different types of employer obligations.
The core of the concept – the position of dominance in the employment agreement – is examined in greater detail. What triggers the employer obligations associated with this position? The thesis clarifies when an employment agreement is binding, what distinguishes it from other agreements, and how responsibility is allocated under such an agreement. These issues require assessments of the 'will' of the parties and of reasonability. For all three issues the relevant 'will' of the parties and the significance and content of the assessments of reasonability is therefore discussed.