When the lover's ex-wife was admitted to the hospital where the employee worked as a health professional, the employee opened and read the journal of the lover's ex-wife. Today, December 7, 2021, the Supreme Court ruled that this gave the hospital the right to dismiss her.

1 Snooping and heated text messages

The employee had a strained relationship with the lover's ex-wife, who was admitted to the hospital where she worked as a health professional. To avoid meeting the lover's ex-wife, the employee read several documents in her medical record to, according to the employee herself, find out which ward the ex-wife was in.

The employer found out about this several months later when the ex-wife complained. After conducting a meeting and a discussion meeting with the employee, they gave her a termination. The employee filed a lawsuit and claimed that the termination was invalid. She remained in the position while the case went to court, and has held the position until now, over three years after the termination.

Before the employer became aware of the snooping, the employee understood that the ex-wife knew that she had snooped in the medical record. The employee then sent an SMS to the lover's ex-wife. This resulted in a heated SMS exchange between them, where the employee was condescending and downplayed the snooping.

About six months after the termination, the employee also received a warning from the Norwegian Board of Health Supervision. The Norwegian Board of Health Supervision supervises health personnel, and may, among other things, issue a warning to health personnel or revoke their authorization.

The Norwegian Board of Health Supervision found that the employee had knowingly and intentionally looked in the medical record without there being a need for this in her work, and that what the employee had done was in violation of the "snoop ban" in the Health Personnel Act § 21 a. The Norwegian Board of Health Supervision found that the snooping weakened both the employer's and society's trust in the employee as a health professional.

2 Snooping was a serious breach of duty

The Supreme Court did not believe that the employee only wanted to find out which ward the lover's ex-wife was in. The court believed that the employee could find out about this in other ways than reading in the medical record and concluded that the snooping was a violation of the Health Personnel Act § 21. This is a provision that the court believed should be part of the core knowledge of all health personnel.

The Supreme Court concluded that snooping was a serious and gross breach of duty and trust. The court pointed out that there was a negative relationship between the employee and the patient. The court also referred to the text messages sent by the employee. The court placed less emphasis on the fact that the employee had not notified the employer of the snooping or text messages.

The Supreme Court concluded that the breach of duty as such was a sufficient reason for termination. It did not matter that the employee had otherwise received good recommendations or that the employer could not say anything negative about the work otherwise.

3 Can the employer extend the justification after the termination has been given?

In termination cases, the Supreme Court assesses, among other things, whether the employer has based its decision on information that the company was aware of at the time of termination. The employer cannot subsequently provide new conditions / information that will also justify the termination.

In this case, however, the Supreme Court allows for a small exception from this main rule: The employer can supplement the justification if there is information that is closely related to what the employer has justified the termination with, and the information comes immediately after the termination is given.

In this case, the employer had not referred in its reasoning to the text messages or that the employee had failed to notify the employer of the snooping. The Supreme Court held that both the text messages and the lack of notice were natural in the extension of the violation of the snoke ban. The hospital was therefore still allowed to use this information in the reasons for the termination, even though they included the information a while after they terminated the employee.

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

4 The significance of the warning from the Norwegian Board of Health Supervision

The employee claimed that the employer could not react with termination when the Norwegian Board of Health Supervision had "only" reacted with a warning. Then the employer had to go to the same level as the Norwegian Board of Health Supervision.

The Supreme Court did not agree with this. The Supreme Court held that the legislator has deliberately set up a two-track system for the employer and the Norwegian Board of Health Supervision. The employer and the Norwegian Board of Health Supervision have different roles and are subject to different rules based on different considerations and with different conditions for giving reactions.

Sometimes public actors (for example a supervision or police) can also investigate and assess any reactions related to the same action(s) with which the employer has justified the termination. In these situations, it is important for the employer not to base the termination exclusively on the public actor investigating the action(s) and/or the reaction that may be given. The basis for the termination will then be vulnerable.

If the employer has higher requirements for the work than any statutory provisions set, a decision by a public authority related to such a statutory provision will be less relevant in the termination assessment. The employer must also be aware of the risk that the public actor may assess the evidence and actions differently from what the employer has done. In the extreme, it can lead to the employee getting the job back.

5 The employer must always remember to consider the interests and proportionality

In all termination processes, the employer must keep in mind that the company must assess interest and proportionality, i.e., whether it is reasonable and natural after an overall balancing of the employer's and employee's needs that the employment relationship ends. It is important that employers remember and document this when they consider termination and which alternatives to termination may be relevant.

In this case, the Supreme Court concluded that even if a termination would hit the employee hard, the court would place less emphasis on this because the termination was due to the employee's own circumstances (as opposed to, for example, downsizing) and because snooping was a serious and gross breach of duty. It did not matter that the employee had exercised her right to continue in the position while the case was being processed by the courts. The hospital had also considered whether there were alternatives to termination but did not find that to be the case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.