Announcement requirements and information obligations during hiring - Rules for the public and private sector
Disclosure Requirements and Information Obligations
The recruitment process is subject to various legal frameworks depending on whether the employer belongs to the public or private sector. For employers in the public sector, there is a statutory requirement for external advertisement of vacant positions. This obligation comes from the Civil Servants Act § 4 for state employers, while municipal employers follow unwritten administrative principles. The purpose of the advertising obligation is to ensure the qualification principle is maintained – the principle that the best-qualified candidate should be hired.
In the private sector, however, there is no equivalent requirement for advertising. The Working Environment Act mandates that all employers, regardless of sector, inform their own employees and hired workers about vacant positions in the company, cf. Working Environment Act § 14-1. The law does not impose specific formal requirements on how this information should be communicated, and the employer is initially free to choose appropriate information channels as long as the information is available to all employees.
Limitations on Information Gathering
Although the Working Environment Act does not set specific requirements for the content of job advertisements, there are several significant restrictions on what information employers can request or collect during the recruitment process. These restrictions apply both in job advertisements and during later phases of the employment process, such as job interviews.
Political Questions and Union Membership
Employers cannot, in job advertisements or otherwise, ask applicants to disclose their stance on political issues or whether they are members of worker organizations, cf. Working Environment Act § 13-4 (1). From this starting point, there are two important exceptions:
When the gathering can be justified by "the nature of the position"
When it is part of the company's purpose to promote certain political views, and the position will be significant for the implementation of this purpose
If employers wish to make use of these exceptions, this must be stated in the job advertisement.
In Rt. 1980 p. 598 (Dental Technician), a job advertisement seeking a "dental technician (non-unionized)" was found to be against the law. The Supreme Court held that the term "the nature of the position" primarily refers to the professional work to be performed, and dental technician work is not of such a special nature that it falls under the exceptions provision.
Rt. 2011 p. 1755 (Gate Gourmet) confirms that the prohibition against collecting information on union membership should not be narrowly interpreted, even in cases where the purpose of the gathering is not discriminatory.
Health Information and Medical Examinations
Employers cannot ask applicants to provide health information beyond what is necessary to perform the job tasks related to the position, cf. Working Environment Act § 9-3 (1). "Health information" is considered any information that can help map a person's current and possible future health condition, including previous sick leave and certain social conditions affecting health.
The necessity criterion should be interpreted narrowly, and consent from the job applicant cannot replace the lack of fulfillment of this criterion. Examples of necessary health information may include questions about whether the job applicant possesses the physical abilities required for the position or if the person has diseases that are incompatible with the position.
Employers can only require medical examinations in the following cases, cf. Working Environment Act § 9-4 (1):
When the right follows from law or regulation
For positions that involve "particular risk" (e.g., in aviation, healthcare, or the food industry)
When it is necessary to protect life or health
In such examinations, the danger must be serious, concrete, imminent, and likely.
Information on Pregnancy and Family Planning
The Equality and Anti-Discrimination Act § 30 prohibits employers from collecting information on pregnancy, adoption, or plans to have children during the employment process.
The Applicant's Duty of Disclosure
The job applicant has a certain duty of disclosure based on the general duty of loyalty in contractual relationships. In HR-2021-605-A (Waiter), the Supreme Court formulated the following starting points for assessing the job applicant's duty of disclosure:
The duty of disclosure primarily depends on whether the information concerns matters of direct importance to the applicant's suitability for the position
For information about unfavorable conditions of more indirect importance, the duty of disclosure is based on a complex assessment
A prerequisite for the duty of disclosure is that the job applicant must have understood that the matter was of significant importance to the employment
The Supreme Court has specified that a job applicant is primarily entitled to highlight what speaks to his or her advantage. The starting point is that the job applicant is not obliged to disclose all previous employment or work conflicts on their own initiative.
Consequences of Breaching the Duty of Disclosure
The timing of commencement is decisive for which rule set applies in the event of a breach of the duty of disclosure:
Before commencement: the rules of contract law
After commencement: the rules of dismissal in the Working Environment Act
Even if the lack of disclosure occurred before employment, the rules of the Working Environment Act will apply if the matter is only discovered after the employee has started in the position, cf. Rt. 2004 p. 76 (General Teacher) and HR-2021-605-A (Waiter).
Practical Recommendations for Employers
• Design job advertisements that clearly communicate the actual requirements and job tasks • Be aware of the limitations related to collecting personal information • If special requirements for political views or organizational membership are needed, document why this is necessary for the nature of the position • Only ask health questions that are directly relevant to the performance of the job • Establish fixed routines for which questions are asked during job interviews to ensure equal treatment and lawful information collection • Document the recruitment process thoroughly, especially assessments related to candidates' qualifications
