Norway: Ruling from the Court of Appeal Regarding an Employee’s Duty of Disclosure During the Hiring Process
This case concerned a jobseeker who had applied for a position as a driver/waste collector in a public enterprise where he had previously been temporarily employed. In Norwegian public enterprises, the employer has a duty to employ the applicant who appears to be best qualified (the qualification principle). There were two applicants for the position, and the plaintiff did not get the job. The two applicants were assessed as equal in terms of professional qualifications, but the plaintiff’s personal suitability was judged to be inferior to that of the other candidate. This was justified by the fact that, in connection with his appointment to the temporary position, he had not disclosed a previous criminal conviction. The question before the Court of Appeal was whether the plaintiff was entitled to compensation because he believed himself to have been unjustifiably passed over in the hiring process.
In assessing whether the plaintiff was entitled to compensation under the employer’s liability, the Court of Appeal relied on Section 2-1(1) of the Norwegian Act on Compensation for Damages. The Court of Appeal held that the employer, by virtue of the management prerogative, has “quite a lot of room for manoeuvre” with regard to what qualifications may be required and how personal suitability is assessed in an employment process. With regard to the job seeker’s duty to disclose adverse circumstances, the Court of Appeal held that it would depend on whether the information relates to matters of direct importance to the job seeker’s suitability for the position and whether the job seeker had to understand that it was of material importance at the time of employment.
In the assessment, the Court of Appeal concluded that the plaintiff had a duty to disclose the criminal offence in the employment process related to the temporary position, in particular, because of the similarity of duties in the positions. It was, therefore, not unreasonable for the employer to give weight to this in the assessment of suitability related to the new position for which he applied. The Court of Appeal also concluded that the employer had no obligation to carry out further investigations to assess the applicant’s suitability, for example, by summoning him or her for an interview for questioning. The withholding of the information was, thus, crucial for the outcome of the case.
The Court of Appeal also ruled that whether applicants should be summoned for an interview is a matter subject to the employer’s management prerogative and that liability is only applicable in cases where a public sector employer commits clear abuse of authority.
The Court’s ruling illustrates that, by virtue of the right to govern, the employer has wide latitude with regard to how personal suitability is to be assessed in an employment process. The judgement also illustrates that jobseekers have a duty to disclose previous criminal convictions in an employment process if the conviction will be relevant to the position for which they are applying, particularly if criminal offences have been committed in previous employment where the duties are fairly similar to those of the advertised position.
