Unlawful to summarily dismiss employee for making unauthorized searches

The case concerned an employee who during his employment with the Swedish Migration Board and periodic employment with the Ministry of Foreign Affairs, had made several unauthorised searches in the Migration Board’s database “Wilma”. The database contained information on applicants and according to an information box which appeared in connection with each login, could not be used for any non-service-related searches. Among other things, the employee had conducted unauthorised searches on his sister’s ex-partner and his two children. An internal investigation determined that the employee had made a high number of unauthorised searches (492 searches) in the database during a five-year period. On this basis, the employee was summarily dismissed.

The questions for the Labour Court were thereafter whether the Migration Board had had legal grounds for summarily dismissing the employee and, if not, whether there had at least been legal grounds for terminating the employee. As part of the Labour Courts’ assessment of the summary dismissal, the main question was whether the searches made in the database could constitute a legal ground for the summary dismissal, partly because several of the employee’s searches had been made while he had been on leave and partly as the two-month rule under the Swedish Employment Protection Act had not been complied with.

Searches made over two years before by an otherwise compliant employee could neither justify summary dismissal nor termination

Pursuant to the two-month rule, an employer cannot as a main rule justify a termination on circumstances known more than two months before notifying the employee of termination. It follows from established practice that the two months are calculated from the moment the grounds for termination become known to the employer. If the employer cannot directly investigate the circumstances, the period instead runs from the moment the circumstances were investigated. In more difficult cases, the two months runs from when the employer has investigated the matter as far as necessary in order to determine the circumstances. In any case, the employer is subject to an obligation to investigate in a proper manner. In the specific case, the Labour Court ruled that the circumstances of the case were difficult to understand and required a longer investigation. It noted that the Migration Board had conducted a proper investigation up to two months before the notice of summary dismissal was issued. Consequently, the two-month rule did not prevent the Migration Board from terminating the employee.

The Labour Court then proceeded to consider the legal grounds for the summary dismissal. It confirmed that as the searches had been made in the Migration Board’s database, the Labour Court found that the searches had been aimed at the Migration Board in such a way that in itself justified the summary dismissal. Irrespectively, the Labour Court found that there was no legal ground for summary dismissal as the employee had been employed for 30 years and the searches was the sole basis for summary dismissal. More importantly, only six searches had been made during the two years before his summary dismissal, while most of the searches were made more than a year before the last unauthorized search. The Labour Court found that the dismissal was unjustified and added that the Migration Board did not even have a legal ground for terminating the employee. Consequently, the Migration Board was obliged to pay damages and to compensate the employee.

IUNO’s opinion

The judgment confirms that serious breach of rules or similar breach of obligations is required for an otherwise compliant employee to be lawfully dismissed. The judgment also demonstrates that several breaches of obligations in the form of unauthorized searches in an employer's database may not in itself constitute a sufficient ground for summary dismissal, especially if the breach took place a long time before the summary dismissal. Two years may be an indication of what constitutes a long time.

IUNO recommends that companies always carefully consider the circumstances that form the basis for a summary dismissal and, from what moment the two-month rule can be considered to apply before a decision to summarily dismiss or terminate an employee is taken.

[Swedish Labour Court case 38/2019]