Ratified treaty¹

Discrimination based on religion/ Inherent requirements of the post/ Use of international law as a guide for intepreting domestic law

A Christian secondary school had adopted regulations stipulating that persons employed in the school could be questioned about their religious beliefs. This provision had namely caused the resignation of the senior administrative officer of the school. The case was brought before a magistrate’s court to have the regulations cancelled, and that court held that the school had a case for questioning persons on their faith in the case of research workers and teachers employed there but not in the case of the post of senior administrative officer. In the appeal proceedings the Court found that this rule was illegal with regard to all of the posts concerned. The school instituted proceedings before the Supreme Court of Norway, but only for the case of teachers.

The Supreme Court first clarified the meaning of the section in the Norwegian law pertaining to discrimination in employment and occupation, interpreting that section in conjunction with international law:

“Before the Workers’ Protection and Working Environment Act was passed,² Norway had ratified ILO Convention No. 111, and it must be presumed that § 55A of the Act³ is not in conflict with the obligations with respect to future legislation which were assumed by Norway through the ratification. I here also refer to what has been said in the preparatory work (…) for the Act. I thus find it unquestionable that in the interpretation of § 55A importance must be attached to the Convention.

According to § 55A, the provisions that prohibit the obtaining of information do not apply if such information is justified by the nature of the post. The essential legal question in this case is whether this exception clause is to be so understood that the circumstances about which information is sought must relate to an absolutely necessary qualification for the individual post, or if it is sufficient that the quality in question is necessary within the category of posts concerned.”

The Supreme Court then proceeded to interpret Section 55 of the Norwegian law, and held that:

“The general purpose of the post may be taken into account as a factor in the assessment of the individual post.” This interpretation provided the possibility of evaluating the post not only in terms of inherent requirements for that specific post but also in terms of the nature of the post in general.

The Supreme Court then examined whether its interpretation was in conformity with ILO Convention No. 111:

“The interpretation of § 55A which I make my basis here seems to be in accordance with what may be said to be a natural consequence of the provision of exception in the ILO Convention No. 111, art.1, para 2. In the English text this provision reads:

“Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.”

The expression “inherent requirement” must be understood to refer to qualification that are immanent on or naturally attached to the post. I thus cannot interpret the provision in such a way that it admits exceptions exclusively where qualities that are necessary for the performance of the work attached to the individual post are in question. I note that the preparatory work on the Convention, which to some extent has been cited by the attorney for the respondents, gives little guidance when it comes to the expression “inherent requirement”.

The French text, which is equally authoritative with the English text reads:

“Les distinctions, exclusions ou préférences fondées sur les qualification exigées pour un emploi déterminé ne sont pas considérées comme des discriminations.”

Here, then, the words “les qualifications exigées” are used. In a preceding draft the prerequisite implied in this expression was strengthened by the word “nécessairement”, which was deleted in the final formulation. I am of the opinion that this alteration corroborates my interpretation of the Convention’s provision.”

The Supreme Court of Norway thus used international law as a guide for interpreting national legislation and held that the general purpose of a post could be taken into consideration as a factor for assessing the inherent requirements for that post. The Court stressed that it was important to take account of ILO Convention No. 111 in the interpretation of national legislation on discrimination in employment and occupation.