Job applicant’s duty to inform

Is a jobseeker obliged to inform that he or she was dismissed from his or her previous employer? In a judgment handed down on 18 March this year (reference HR-2021-605-A), the Supreme Court has provided principled guidelines for the content of jobseekers' duty to provide information to potential new employers.

The specific case concerned a waiter who had been fired by his former employer due to bad behaviour and cooperation problems. The waiter failed to inform his new employer of the dismissal. He also omitted to disclose the previous employment relationship in his CV. The CV was formulated in a way that gave the impression that the employee had not been at work for the past 2 years, and that he had performed private doings that were not relevant to the application.

When the new employer became aware of the state of things, the employee was dismissed. The dismissal was given during the probationary period and was based on lack of reliability. The employee had sued his former employer for wrongful dismissal, and a court settlement had been reached in this case where the employee was awarded quantum of damages for non-economic loss.

The key question for the Supreme Court was whether the employee had breached his duty to provide information to the new employer in a way that could justify the dismissal. The Supreme Court initially ruled that the lower threshold for dismissal during the probationary period also applies to lack of reliability in the form of failure to provide information prior to employment.

In practice, however, this is moderated later in the judgment, when it is stated that: “Even in the event of dismissal during the probationary period due to failing reliability, the fact that the jobseeker has withheld information of significant importance may not in itself be sufficient. In addition, it must be required that the withholding of information after an overall assessment must be said to be clearly disloyal on the part of the jobseekers» (our emphasis).

In the judgment, the Supreme Court provides a general and principled account of the content and limits of jobseekers' duty to provide information. The main points of the judgment are as follows:

• Jobseekers' duty to provide information may have to be anchored in the general duty of loyalty in contractual relationships, which is based on what the parties have reasonable grounds to expect from each other. The purpose of the Working Environment Act to ensure an inclusive working life is an important interpretive factor in this assessment.

• The main rule must be that, within the framework of the law, it is up to the employer to ask the questions about the jobseeker's background that the employer considers to be important for the position.

• The jobseeker does not have the right to provide positively incorrect information, but has the right in applications, CVs and interviews to primarily highlight what speaks in his or her favour.

• In assessing whether the jobseeker has a general duty to provide information, a distinction must be made between information concerning matters of direct significance to the jobseeker's suitability for the position and matters of more indirect significance. There is not a sharp distinction, but it takes less for the jobseeker to have a duty to provide information about professional qualifications and work experience that is directly relevant and of significant importance to the position.

• Whether the jobseeker has a duty to provide information about matters of more indirect significance depends on a complex assessment where the seriousness of the matter, seen in connection with the position to which the application applies and with the nature of the business, will be important. It is a requirement that the jobseeker must understand that the matters were of significant importance to the employment. Clarifying which qualifications and qualities are essential for the position is a responsibility that rests primarily with the company.

• The starting point is that a jobseeker does not have a general duty to mention all previous employment on his or her own initiative.

• Employers cannot generally expect to receive information that the jobseeker has recently been involved in employment disputes at a previous workplace.

In the specific case, the Supreme Court concluded that the employee was not obliged to state that he had been dismissed from his previous employment, nor was he obliged to provide information about the employment as such. The fact that he had given misleading information in his CV was not sufficient to justify the dismissal.

The judgment provides a thorough and instructive account of the content and extent of the jobseeker's duty to provide information. The key learning point from the judgment is that it is primarily up to the employer to clarify qualification requirements and skills that are of significant importance to the position, and to explicitly request the information that is relevant to the employer's assessment of the employment.

One cannot trust that applications and CVs give a complete picture of qualifications, skills and work history. Employers should also be careful to document what questions have been asked and what answers have been given with regard to matters that are important for the employment.