The Supreme Court has ruled in a case where an employee purchased train tickets for private purposes from his work phone. According to the Supreme Court, the summary dismissal was justified.

The case concerned an employee, who was provided with a smart phone in connection with his employment. It did not appear from the staff manual or other guidelines for what purposes the phone could be used, nor had the employee received any oral instruction in this respect.

During the employment, the employee's phone bill was subject to a random check. The employer found out that, for five months, the employee had used an application on the phone to buy private train tickets for the employer's account amounting to DKK 1,282.

PRIVATE SPENDING ON WORK PHONE LED TO SUMMARY DISMISSAL

The employer offered that the employee could terminate his employment, but as he refused, the employer chose to summarily dismiss him.

The employee believed that the summary dismissal was unjustified and therefore brought legal action against the company claiming payment of salary in the notice period and compensation for unjustified summary dismissal.

The employee argued that the summary dismissal was unjustified because he had paid multimedia tax of an amount of DKK 3,000, and that he therefore believed that he was entitled to pay private expenses with his phone for an equivalent amount.

In the district court, the employer was ordered to pay compensation to the employee. The district court took into account that the employee had not been informed - either orally or in writing - about the purposes for which the work phone could be used. According to the district court, it was therefore not a gross breach of the employment to buy train tickets for the employer's account.

THE EMPLOYEE SHOULD HAVE KNOWN THAT HE WAS NOT ALLOWED TO PAY PRIVATE EXPENSES USING THE WORK PHONE  

The Eastern High Court disagreed with the district court ruling and found that even if no instructions had been given concerning the use of the phone for private purposes, it should have been clear to the employee that the phone was a working tool, which should not be used for payment of private expenses without the employer's consent.

The fact that the employee paid multimedia tax of DKK 3,000 could not result in the employee having a justified expectation that he could pay private expenses for an equivalent amount by using the phone.

On this basis, the High Court ruled in favour of the employer. With reference to the High Court's grounds, the Supreme Court affirmed the ruling.

A FREE PHONE IS ONLY TO BE USED FOR TELEPHONY

The question was whether an employee, without special agreement, may consider the employer's payment of telephony as a benefit corresponding to a salary component with the result that the employee is free to dispose of the phone in line with other salary components.

The ruling shows that even if an employee is provided with free private telephony or is allowed to make private calls for a certain amount each month, this does not entitle the employee to pay private expenses for the employer's account simply because it is possible to pay the expenses using the phone.

Free telephony is therefore not a salary component, which the employee is free to dispose of, but it is a benefit, which - without specific agreement concerning other use - only extends to general use of the phone, in particular calls, text messages and, to a certain extent, presumably surfing on the Internet. This applies, irrespective of whether the employee pays multimedia tax of the free phone.
   
For the same reason, an employee may not use the phone to support charitable fund raisings or to vote for its X Factor favourite and then have the employer pay the expense.

contacts

Jonas Enkegaard

Partner

Maria Schmiegelow

Attorney