Facts
Decision
Comment

In a decision of December 7, 2021, the Supreme Court gave a hospital the right to fire an employee who had opened and read the medical file of her partner’s ex-wife, who was a patient at the same hospital.

Facts

The employee had a strained relationship with her partner’s ex-wife, who was admitted to the hospital where the employee worked as a medical professional. According to the employee, she read several documents in the ex-wife’s medical file to avoid meeting her and to find out which department she was staying in.

The employer learned about it several months later when the ex-wife filed a complaint. After conducting several meetings with the employee, she was dismissed from her job. The employee filed a complaint and claimed the dismissal was invalid. She maintained that position when the case went to court and has maintained it since the dismissal was confirmed in 2018.

Before the employer knew about the spy incident, the employee claimed the ex-wife knew she had seen her medical records because the employee had texted her, which resulted in a heated exchange in which the employee was “patronizing and downplayed the espionage.”

About six months after the dismissal, the employee also received a warning from the Health Supervisory Board (the Board). The Council supervises health personnel and can, among other things, issue warnings to health personnel and revoke their work permits.

The Commission found that the employee in question knowingly and intentionally consulted the ex-wife’s medical file, even though it was not necessary for the performance of her duties and, therefore, that she was in breach of the “espionage ban” in section 21 (a) of the Health Personnel Act. The Commission concluded that the espionage had weakened the confidence of the employer and the company in the employee as a healthcare professional.

Decision

The Supreme Court did not believe that the employee only wanted to know the department in which the ex-wife was staying, because it believed that there were other means than the medical file to obtain such information; therefore, the court ruled that this was a violation of section 21 (a) of the Health Personnel Act.

The court concluded that espionage was a serious and grave breach of duty and trust. The court pointed out that there was a negative relationship between the employee and the patient, also referring to text messages sent by the employee. The court emphasized less that the employee did not notify the employer of the espionage or the text messages.

Finally, the Court declared that the dereliction of duty was sufficient ground for termination and did not consider the fact that the employee’s professional performance beyond this issue was generally good.

Comment

Can employers expand justifications after layoffs?
In dismissal cases, the Supreme Court assesses, among other things, whether the employer based its decision on information known to the company at the time of the dismissal. The employer cannot subsequently provide new conditions or information which will also justify the dismissal.

In this case, however, the Supreme Court allowed a small exception to this main rule; the employer can complete the justification if there is information closely related to the dismissal and this information is brought to the attention immediately after the dismissal decision.

In this case, the employer did not refer in its reasoning to the text messages or to the employee’s failure to inform the employer of the espionage. The Supreme Court ruled that text messages and the lack of notice were natural as an extension of the spy ban violation. The hospital was therefore still allowed to use this information in the grounds for termination, even if it did not include the information immediately after the employee was terminated.

Employers should note that there is a high threshold for using this exception. Companies should always ensure that they have included and discussed all relevant information in the case with the employee, before giving and justifying a termination.

Importance of the Council’s warning
The employee claimed that the employer could not go ahead with the dismissal when the Commission had issued “only” a warning. The Supreme Court ruled that the law deliberately establishes a two-tier system for the employer and the board. The employer and the Commission have different roles and, therefore, the rules to which they are subject are based on different considerations when determining their respective responses.

Sometimes public actors (for example, supervisors or the police) may also investigate and assess any decision related to the same action (s) that the employer used to justify the dismissal. In these situations, it is important for the employer not to base the dismissal exclusively on the public actor investigating the act (s) and / or the decision that might be taken. The reason for the dismissal will then be vulnerable.

If the employer has higher demands for the job than any legal provision, a decision of a public authority related to such a legal provision will be less relevant in the assessment of the dismissal. The employer should also be aware of the risk that the public actor will evaluate evidence and actions differently. In the extreme, this can lead to the reinstatement of the employee.

Taking into account interests and proportionality
In all dismissal processes, the employer should keep in mind that the company should assess its interests and proportionality (i.e. whether it is reasonable and essential after a review of the needs of the employer and employee that the employment relationship ends). Employers should remember this and document this when considering termination and what alternatives to termination may be relevant.

In that case, the Supreme Court concluded that even if a dismissal had a negative impact on the employee, the emphasis would be less on this point, since the dismissal was due to the personal situation of the employee (as opposed, for example, downsizing) and because the espionage incident was a serious and grave dereliction of duty. It did not matter that the employee exercised her right to continue in this position while the case was pending in the courts. The hospital had also examined whether there were alternatives to the dismissal, but found none.

For more information on this topic, please contact Ole Kristian Olsby or Lise granny at Homble Olsby | Littler by phone (+47 23 89 75 70) or by email ([email protected] Where [email protected]). The Homble Olsby | Littler’s website can be accessed at www.homble-olsby.no.


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