In a recent judgment (KKO:2015:41), the Finnish Supreme Court evaluated criminal liability relating to discrimination at work. It confirmed that the employer had discriminated against an employee when her employment was terminated, inter alia, on the grounds that she had not been honest about her spouse's political activity and gender. The Supreme Court increased the fines imposed on the managing director by almost EUR 12,000, to a total of EUR 18,040.
In the case, the company, an independent newspaper, had signed an employment contract with a female candidate for the position of editor-in-chief on 1 September 2008. Later in September, it transpired that her spouse was a candidate in the municipal elections, although the employee had said in the job interview that her spouse was not politically active. It also transpired that her spouse was a woman, and that the employee had not corrected her colleagues' assumption that the spouse was a man. The managing director terminated the employment relationship due to the employee's dishonest conduct relating to various issues.
On 18 March 2010, the Court of Appeal of Helsinki ruled that the termination itself was unjustified. The criminal liability proceedings relating to the case began after the judgment. The prosecutor claimed that the managing director had discriminated against the employee based on family relations and sexual orientation, without justified grounds.
In its judgment, the Supreme Court considered what constitutes discrimination based on family relations under the Finnish Criminal Code. According to the lower courts, a question regarding a spouse's political activity does not fall under the concept of family relations. The Supreme Court held, however, that discrimination against the employee, based on a family member's characteristic, activity or opinion, constituting grounds for discrimination under the Criminal Code can amount to criminal discrimination against the employee. Furthermore, the Supreme Court held that the employee's position as editor-in-chief of an independent newspaper did not justify asking questions about the spouse's political activity. The Supreme Court concluded that the managing director had discriminated against the employee based on family relations.
As regards discrimination based on sexual orientation, the Supreme Court noted that there was no doubt that the gender of the employee's spouse had affected the termination of her employment. The spouse's gender was irrelevant to her employment. If the employee had disclosed her spouse's gender, she would have disclosed information regarding her sexual orientation that she had no obligation to disclose. There was no justified reason for the employer to demand that she disclose such information.
This is the first case where the Supreme Court rules has ruled on an employee's dishonesty when asked irrelevant questions in a job interview. The preparatory works of the legislation state that in such a situation the employee may give "insufficient" answers, and legal scholars have presented different interpretations as to what this could mean. This case confirms that prospective employees may lie if the employer requests unnecessary information from them. This is also the first time that the Supreme Court has evaluated what constitutes discrimination based on family relations under the Criminal Code. The Supreme Court followed the principle of associative discrimination (i.e. discrimination on the grounds of association with a person who has the characteristic that is a ground for discrimination) established by the Court of Justice of the European Union. Furthermore, the case illustrates the need for companies to carefully train their personnel responsible for recruitment and to analyze what sort of information should be requested from prospective employees.
Comments on the case from a Swedish perspective:
There is no prohibition against discrimination in the Swedish Penal Code; instead, the provisions regarding discrimination can be found in the Discrimination Act. According to the Discrimination Act, neither family relations nor political activity constitute grounds for discrimination, but sexual orientation does. To this date there is no Swedish case law on whether employees are entitled to lie about or withhold irrelevant information during the recruitment process. Nevertheless, it is highly likely that a situation similar to the Finnish case would be considered unlawful discrimination if considered by a Swedish court.