The Supreme Court has just ruled in a case concerning a former employer's disclosure of information to a potential new employer about the suspected alcohol abuse of a former employee.

Background

The case concerned a female employee who had been dismissed from H Municipality due to excessive sickness absence. The employee applied for a position with S Municipality, and during the interview, she consented to information being obtained from H Municipality. S Municipality contacted H Municipality, and an employee with H Municipality stated that in addition to the sickness absence causing the dismissal, there was also suspicion of alcohol abuse. The reason for this suspicion was, partly, that the employee's office often smelled of alcohol and that a number of bottles had been found in the public bathroom. The employee's superior confronted her with the suspicion, but she denied having an alcohol problem. After having obtained this information, S Municipality decided not to hire the employee.

The case has been heard by all three instances.

The City Court's findings

The City Court found that the municipalities had committed no errors as regards the current rules of administrative law, as the employee had consented to the municipalities' exchange of information, and as the information communicated by H Municipality was factual and correct. The Court found in favour of both municipalities.

The High Court's findings

The Eastern High Court found that a suspected alcohol problem is considered health data covered by the Danish Health Data Act. Both municipalities were ordered to pay compensation of DKK 25,000 - H Municipality for having disclosed the information, and S Municipality for having obtained the information from the former employer.

The Supreme Court's findings

The Supreme Court found that information on abuse of stimulants is not covered by the Health Data Act, but rather by the concept of "health data" under section 7 of the Danish Personal Data Act, and that by giving her consent to the obtaining of information from her former employer, the employee did not consent to the obtaining of such sensitive data. H Municipality was therefore ordered to pay compensation of DKK 25,000 under the provision of the Danish Liability in Damages Act on injury to an employee's feelings and reputation. As a public authority, S Municipality should have heard the employee about the new information obtained, but the Supreme Court dismissed the claim for compensation as the failure to hear the employee was not important to the decision not to employ her.

Consequences

The Supreme Court ruling illustrates that employers must pay special attention to the kind of information disclosed and obtained concerning former and potential employees – even where the applicant has consented to the obtaining of information.

In addition, the ruling once again establishes that both parties must be heard, but also that failure to hear a party is not penalised if such failure was not significant to the decision.

The three instances' different findings illustrate the legal complexity of the subject. At our morning meeting on Thursday 16 June, we will elaborate on this subject based on the above case.

The content of this Newsletter is not, and should not replace, legal advice.

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Erik Wendelboe Christiansen

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Marianne Lage

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