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Is silence golden?

August 2011 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

Data protection
It cost a former employer about EUR 3,400 to pass on information about suspected alcohol abuse at a reference interview.
If an employer decides to pass on information about an ex-employee, the employer must ensure that the ex-employee’s consent has been obtained. In case of sensitive personal data, specific consent will generally be necessary. This can be seen from this case from the Danish Supreme Court.
A social worker was at a job interview. During the interview, she consented to references being taken. After the interview, the potential new employer felt that she was not the most obvious candidate. But since she was the only applicant, it was decided to take references anyway.
In that connection, the former employer informed the potential new employer that while the social worker was employed there, they had asked her if she had an alcohol problem, but the social worker had denied. And she had not been dismissed for alcohol abuse, but for her sickness absence.
Speech is silver ...
Since the information about a possible alcohol problem had not come up at the job interview, the potential new employer called the social worker to hear what she had to say on the matter. She was also told that she would not be offered the job.
The social worker was upset. She felt that the information about her suspected alcohol abuse was both confidential and crucial. She therefore turned to her trade union, which then sued both the potential new employer and the former employer. The trade union felt that the two employers had acted contrary to the Danish Health Data Act and the Danish Data Protection Act.
On appeal, the Danish Supreme Court noted first of all that the Danish Health Data Act does not cover data about abuse of stimulants. The Danish Health Data Act was therefore not relevant to the case.
As for the Danish Data Protection Act, the Court noted that the information about suspected alcohol abuse had not been solicited but was given on the former employer’s own initiative. The potential new employer could therefore not be blamed for having asked in general terms.
The former employer, on the other hand, was held to have breached the Danish Data Protection Act, more specifically its ban on disclosure of sensitive personal data. The Court did not believe that the case worker had consented to the information being disclosed to the potential new employer. On those grounds, the case worker was awarded about EUR 3,400 in compensation.
The Supreme Court thus overturned the High Court’s judgment by ruling in favour of the potential new employer and by establishing that the Danish Health Data Act was not applicable.
Norrbom Vinding notes:
  • that it is specified in the Supreme Court judgment that the Danish Health Data Act does not apply to information about abuse of stimulants; and

  • that when taking up and giving references, employers should ensure that the candidate's consent is sufficiently specific in relation to the information which is collected and passed on.
The employers were represented by Norrbom Vinding before the High Court and the Supreme Court.
The above does not constitute legal advice and should not be relied upon as such

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