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21 April 2021
On 18 March 2021 the Supreme Court issued a decision concerning jobseekers' duty to provide information about previous employment relationships to potential new employers (HR-2021-605-A). The court highlighted a set of principled guidelines with regard to the content of the information to be provided and the extent of jobseekers' duty to provide such information.
The case concerned a waiter who had been fired by his former employer due to threatening behaviour and cooperation problems. The waiter failed to inform his new employer of the dismissal. He had also not mentioned the previous employment relationship on his CV. His CV was formulated in a way that gave the impression that he had not been working for the past two years and that he had performed private work that was irrelevant to the application.
When the new employer became aware of the state of things, the employee was dismissed. The dismissal occurred during the employee's probation period and was based on a lack of reliability. The employee had sued his former employer for wrongful dismissal and a court settlement had been reached in this case where the employee was awarded quantum of damages for non-economic loss.
The key question for the Supreme Court was whether the employee had breached his duty to provide information to his new employer in a way that could justify the dismissal. Initially, the Supreme Court ruled that the lower threshold for dismissal during the probation period also applied to the lack of reliability in the form of failure to provide information prior to employment.
However, the Supreme Court stated later in the judgment that:
[e]ven in the event of dismissal during the probationary period due to failing reliability, the fact that the jobseeker has withheld information of significant importance may not in itself be sufficient. In addition, it must be required that the withholding of information after an overall assessment must be said to be clearly disloyal on the part of the jobseekers. [Emphasis added.]
In the judgment, the Supreme Court highlighted the following points with regard to jobseekers' duty to provide information:
In this specific case, the Supreme Court concluded that the employee was not obliged to:
The fact that he had given misleading information in his CV was not sufficient to justify the dismissal.
The judgment provides a thorough and instructive account of the content of the information to be provided and the extent of jobseekers' duty to provide such information. The key takeaway from the judgment is that it is primarily up to employers to clarify qualification requirements and skills that are of significant importance to the position and to explicitly request the information that is relevant to their assessment of the employment.
Employers cannot trust that applications and CVs provide a complete picture of qualifications, skills and work history. Employers should also be careful to document what questions have been asked and what answers have been given with regard to matters that are important for the role.
For further information on this topic please contact Ole Kristian Olsby or Nina Elisabeth Thjømøe at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email (email@example.com or firstname.lastname@example.org). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.
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