Ole Kristian Olsby January 5 2022 Supreme Court rules that medical record snooping is reason for dismissal Littler Norway | Employment & Immigration - Norway Ole Kristian Olsby Employment & Immigration FactsDecisionCommentIn a 7 December 2021 decision, the Supreme Court gave a hospital the right to dismiss an employee who had opened and read the medical record of her partner's ex-wife, who was a patient in the same hospital.FactsThe employee had a strained relationship with her partner's ex-wife, who was admitted to the hospital where the employee worked as a health professional. According to the employee, she read several documents in the ex-wife's medical record to avoid meeting her and to find out in which ward she was staying.The employer found out about this several months later when the ex-wife complained. After conducting several meetings with the employee, she was dismissed from her role. The employee filed a lawsuit and claimed that the dismissal was invalid. She maintained this position when the case went to court and has maintained it since the dismissal was confirmed in 2018.Before the employer became aware of the snooping incident, the employee held that the ex-wife knew that she had looked at her medical record as the employee had sent a text message to her, which resulted in a heated exchange in which the employee was "condescending and downplayed the snooping".Approximately six months after the dismissal, the employee also received a warning from the Board of Health Supervision (the Board). The Board supervises health personnel and may, among other things, issue warnings to health personnel and revoke their work authorisations.The Board found that the employee in question had knowingly and intentionally looked at the ex-wife's medical record, despite this not being necessary to carry out her duties, and, therefore, she was in violation of the "snooping ban" in section 21(a) of the Health Personnel Act. The Board found that the snooping weakened both the employer's and society's trust in the employee as a health professional.DecisionThe Supreme Court did not believe that the employee wanted only to find out the ward in which the ex-wife was staying, as it believed that there were means other than the medical record to obtain such information; therefore, the Court ruled this as a violation of section 21(a) of the Health Personnel Act.The Court concluded that the 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, also referring 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 the text messages.Finally, the Court stated that the breach of duty was a sufficient reason for dismissal and it did not consider the fact that the employee's professional performance beyond this matter was generally good.Comment Can employers extend justifications after dismissals?In dismissal 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 dismissal. The employer cannot subsequently provide new conditions or information that will also justify the dismissal.In this case, however, the Supreme Court allowed for a small exception to this main rule; the employer can supplement the justification if there is closely related information related to the dismissal and that such information is made known immediately after the dismissal decision.In the case at hand, 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 snooping ban. The hospital was therefore still allowed to use this information in the reasons for the dismissal, even though it did not include the information immediately after the employee's dismissal.Employers should note that there is a high threshold for using this exception. 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 dismissal.Significance of Board's warningThe employee claimed that the employer could not go ahead with the dismissal when the Board had issued "only" a warning. The Supreme Court held that the legislation deliberately sets out a two-track system for the employer and the Board. The employer and the Board have different roles and, therefore, the rules that they are subject to are based on different considerations when determining their respective responses. Sometimes public actors (eg, supervisors or the police) can also investigate and assess any decisions that are related to the same action(s) that the employer has 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 action(s) and/or the decision that may be made. The basis for the dismissal will then be vulnerable.If the employer has higher requirements for the work than any statutory provisions, a decision by a public authority related to such a statutory provision will be less relevant in the dismissal assessment. The employer must also be aware of the risk that the public actor may assess the evidence and actions differently. In the extreme, this can lead to the employee being reinstated.Consideration of interests and proportionalityIn all dismissal processes, the employer should keep in mind that the company must assess its interests and proportionality (ie, whether it is reasonable and essential after a review of the employer's and employee's needs that the employment relationship ends). Employers should remember and document this when they consider dismissal and which alternatives to dismissal may be relevant.In this case, the Supreme Court concluded that even if a dismissal would negatively affect the employee, less emphasis would be placed on this, as the dismissal was due to the employee's own circumstances (as opposed to, for instance, downsizing) and because the snooping incident was a serious and gross breach of duty. It did not matter that the employee had exercised her right to continue in the role while the case was being processed by the courts. The hospital had also considered whether there were alternatives to dismissal but it did not find any.For further information on this topic please contact Ole Kristian Olsby or Lise Gran at Homble Olsby | Littler by telephone (+47 23 89 75 70) or email ([email protected] or [email protected]). The Homble Olsby | Littler website can be accessed at www.homble-olsby.no.