Must job applicants disclose their past?

A waiter was employed at a restaurant. During the trial period, the company became aware that the employee had been summarily dismissed from his previous position due to behavioural issues and cooperation problems. The employee had not listed the position on his CV but referred to the two-year gap as irrelevant for the employment. As a direct consequence, the company decided to terminate the employee during the trial period due to absence of trust.

The main question for the Norwegian Supreme Court was if the duty to disclose information in itself was breached in a way that could justify the termination.

No obligation to disclose information on own initiative

Initially, the court stated that job applicants’ duty to disclose information follows from the duty of loyalty and will be dependent on whether the information on previous professional qualifications or work experience is of direct significance to the new employment. This of course presumes that the job applicant understands that the information is significant to the new position.

Job applicants does therefore not as a main rule have a duty to disclose all previous work experience but can focus on positive information about themselves. Companies can therefore not reasonably expect to receive information about disputes during previous employment or summary dismissals. The court, however, emphasized that job applicants must not give misleading information about themselves.

The court found that the employee knew that the information was of a significant importance to the company, and by giving misleading information he had acted against the duty of loyalty. Despite this, it could not be considered sufficient grounds for a justified termination. The reasons included:

• That the employee had referenced several other relevant experiences,
• That the responsibility to ask questions of importance was company’s, and
• That the company had never received complaints to the employee’s actual performance prior to the knowledge of his previous position.

IUNO’s opinion

The judgement confirms that although the threshold for when a termination is justified is lower during the trial period, it is still high, namely compared to for example Sweden and Denmark. More importantly, the judgement clarifies that it is the company’s responsibility to ask for information that the company finds relevant for the employment.

IUNO recommends that companies explain the qualification requirements and skills that are considered important to the position to job applicants. Companies should further consider what questions to ask during the recruitment process and request the information that is relevant for the position in question.

[The Norwegian Supreme Court’s judgement HR-2021-605-A of 18 March 2021]