The grey areas of the concept of occupational injury

A lot has happened in the labour market since the legislator formulated the concept of occupational injury in the National Insurance Act in 1997. What is required of an employee in terms of availability, efficiency and social participation has changed a lot in recent years. Many employers expect their employees to participate in social activities that take place outside of work, the workplace and working hours. More and more employers are also organising outings and team-building activities. But will employees be covered by occupational injury insurance when participating in social activities organised by their employer?

Social activities organised by the employer often take place in the evenings/weekends, i.e. outside working hours. As a rule, the activities are also not part of the employees« normal work duties, and often take place at a location other than the permanent workplace. It may therefore appear that the condition in section 13-3 of the National Insurance Act that the injury must have occurred »while working at the workplace during working hours" is not met. Nevertheless, a personal injury sustained during such social activities may be recognised as an occupational injury.

Guidance on how these occupational conditions are to be assessed can be found in the Supreme Court's judgement in Rt-2014-513 (the ake judgement) and NAV's circular R13-00-D16. In the ake judgement, the Supreme Court listed examples of activities that cannot be said to have taken place at work: «For example, injuries that occur during purely social activities or leisure activities organised by the employer, such as dinner and dancing at seminars, Christmas parties or organised training after working hours, are not usually covered. The same applies to injuries that occur if a seminar participant uses a break in the programme to go downhill skiing or jogging.»

In the ake judgement, the Supreme Court placed decisive emphasis on the fact that the employer expected participation in the ake, even though participation was not mandatory, and that the purpose of the ake was to strengthen team building among the seminar participants and to create positive engagement in the professional part of the seminar. Emphasis was also placed on the fact that it was the employer who organised and paid for the event.

Whether or not employees are covered for occupational injuries when participating in social activities organised by the employer must therefore depend on a specific assessment. Practice following the ake ruling shows that the insurance companies place the greatest emphasis on whether the activity has been arranged and paid for by the employer, and that the excursion is part of a programme that contains several professional elements.