In a new ruling, the Supreme Court establishes that an employer's cancellation of a contract of employment was justified. The reason for the cancellation was that the employee had failed to observe the duty of disclosure under the Health Data Act.

An HR consultant at a regional hospital was dismissed with effect from 31 May 2010 due to long-term sickness absence as a consequence of work-related stress. In an application and during the subsequent interview for the position as pay consultant with Regionshuset, the employee gave the impression that she was still employed with the hospital. She did not state that she had been absent due to sickness for a long period.

Regionshuset offered her the position and a number of personal data was transferred in this connection. Consequently, Regionshuset became aware that the employee had retired as at 31 May 2010 and that she had been reported sick for a long period due to work-related stress. Based on this information, Regionshuset chose to withdraw its commitment to employ the employee.

DISTRICT COURT AND HIGH COURT AGREED: CANCELLATION OF CONTRACT OF EMPLOYMENT WAS JUSTIFIED

Subsequently, the employee's union brought legal action against Regionshuset claiming payment of salary equivalent to the notice of termination and compensation for unlawful use of health data.

The district court found that, because the sickness had been long-term and in direct connection in terms of time with her application, the employee was obligated to inform Regionshuset about her sickness under the Health Data Act. The cancellation of the contract of employment was therefore justified and the employee was not entitled to salary in the notice period. The district court also found that there were no grounds for awarding compensation under the Health Data Act as Regionshuset had not acted contrary to this Act in connection with the obtaining of the data.

The district court therefore ruled in favour of Regionshuset in relation to all claims. The ruling was appealed against to the Western High Court, which affirmed the district court ruling. The employee was granted permission to bring the action before the Supreme Court.

DUTY OF DISCLOSURE UNDER THE HEALTH DATA ACT

In the ruling, the Supreme Court starts by referring to section 6 of the Health Data Act, according to which an employee must, prior to the employment, disclose whether he/she is suffering from a disease which may significantly affect his/her capacity to work in relation to the work applied for.

According to the Supreme Court, work-related stress resulting in absence is covered by the duty of disclosure irrespective of whether the condition is considered a disease in a medical sense. The Supreme Court further stated that the duty of disclosure also applies in situations where the employee should realise that he/she is suffering from a disease involving a high risk of incapacity for work, notwithstanding whether the employee does not know whether the disease will in fact result in incapacity for work.

THE SUPREME COURT: FRAUDULENT TO WITHHOLD DATA

The Supreme Court attaches importance to the fact that the new position as pay consultant was of the same nature as the previous position and, as the employee's stress was work-related, she should have realised during the employment procedure that there was a high risk of continued stress, which could significantly affect her ability to work. According to the Supreme Court, the employee had therefore failed to observe her duty of disclosure under the Health Data Act.

The Supreme Court further stated that, in the application, the employee had deliberately given the wrong impression that she was not under notice to avoid that the dismissal and the sickness absence would have negative impact on her employment chances. According to the Supreme Court, the employee had acted fraudulently and contrary to the loyal duty of disclosure. On this basis, the Supreme Court found that the employee was not entitled to compensation for the cancellation of the contract of employment.

Consequently, the Supreme Court affirmed the high court ruling.

COMMENTS

The Supreme Court ruling shows that an employee's duty of disclosure under section 6 of the Health Data Act involves both the situation where the employee is aware of a disease, but also the situation where the employee has to realise that he/she is suffering from a disease with a high risk of incapacity for work.

The ruling also shows that an employer is entitled to cancel an offer for employment if data is disclosed showing that the employee has deliberately given a wrong impression of his/her ability to work.

However, it is important to note that an employee is only obligated to disclose health data if the disease will significantly affect the ability to work.

The employer may also obtain health data on a potential employee, but it is important to note that, in this situation, the employer's right to receive data on an employee's health is limited to include only diseases or symptoms of diseases if the disease significantly affects the employee's ability to work. For example, an employer cannot ask whether the employee has diabetes, as this disease is not considered to affect the employee's ability to work.

It is therefore important for employers to note which circumstances you may ask for information about and which information the employee is not obligated to give.

contacts

Finn Schwarz

Managing Partner

Maria Schmiegelow

Attorney