At a glance
- The Supreme Court assessed the employers’ obligation to offer work as an alternative for redundancy.
- The Supreme Court clarified in its ruling that the law doesn’t require employers to give their employees the first available job opening. Instead, employers are required to provide job opportunities throughout the notice period.
- In situations where an employer has several different vacancies to offer an employee, all of which are suitable for the employee's skills, the employer is entitled to choose, on objective grounds, which vacancy to offer.
- The Supreme Court emphasised the significance of the principle of fidelity in which the employer is obliged to take the employee’s interests into account and to seek to maintain the continuity of the employment relationship. However, the employer may, observing objective justification, refuse to offer work for which the employee would be suitable for.
Background
The Supreme Court assessed the employers’ obligation to offer work as an alternative to redundancy. In this case, an air traffic controller in a smaller airport in Helsinki was at risk of redundancy. The question before the Supreme Court was whether the company breached its obligation to offer work under the Employment Contracts Act (55/2001) by not offering the employee the first vacancy at Helsinki-Vantaa airport but offering a vacancy later at Tampere-Pirkkala airport. For the vacant position at Helsinki-Vantaa airport an external applicant was selected.
According to the Finnish Employment Contracts Act and its legislative materials, employees must first be offered work that is equivalent to that defined in their employment agreement, and if no such work is available, they can then be offered other work equivalent to their training, professional skill, or experience. The employer must provide employees with training which is reasonably required for duties of their new work. What kind of work is similar to the current job needs to be figured out individually for each case. The responsibility to provide work continues for the entire notice period and isn’t just limited to a certain area.
No obligation to offer the first possible vacancy
The Supreme Court clarified in its ruling that the law does not support the interpretation according to which the employer would be obliged to offer its employee the first possible vacancy. Further, when offering work, the employer also has the possibility to assess the employee’s suitability and other qualities, which can be assessed in relation to the vacancy. In situations where an employer has several different vacancies to offer to an employee, all of which are suitable for the employee's skills, the employer is entitled to choose, on objective grounds, which vacancy to offer. In this situation, the Supreme Court decided that the differences between the two airports and concerns about flight safety were valid reasons for not giving the employee the first open position at Helsinki-Vantaa airport. Instead, they hired someone who didn’t already work for the company.
Principle of fidelity
The Supreme Court emphasised the significance of the principle of fidelity in which the employer is obliged to take the employee’s interests into account and to seek to maintain the continuity of the employment relationship. Therefore, an employer cannot provide an inappropriate job offer, or without justification, refuse to offer work for which the employee would be suitable for and which the employer knows would clearly be preferable to the employee than the alternative work offered. However, the employee does not have the right to require a job position he or she prefers.
The Supreme Court acknowledged that Helsinki-Vantaa is the busiest airport in Finland and has the most demanding work environment. Consequently, the Supreme Court found it reasonable for the company to fill the vacancy based on suitability and results of specific aptitude tests. Therefore, the company did not act in breach of its fidelity obligations, nor did it violate its obligation to offer employment and training by not offering the first vacancy, but rather later offering the vacancy at Tampere-Pirkkala.
Takeaways for employers
The decision provides a good overview of the requirements for job offers in the context of redundancies. The choice to hire someone from outside the company instead of an employee whose role is being eliminated is made on an individual basis and isn’t a standard practice. The Supreme Court found that the differences between the two airports and flight safety concerns were valid reasons for not giving the first available job to the employee. Generally, employees whose roles are being cut are given preference over outside applicants, as long as it’s within the rules of the Employment Contracts Act.
