The employer's right to direct and control means that the employer has the right and responsibility to instruct the employees and set the framework for the performance of the work. The employees on their part are required to comply with the employer's instructions, and any disobedience may lead to summary dismissal. In this appeal before the Danish Western High Court, the question was whether an employer was justified in summarily dismissing an employee for insisting on recording the proceedings at a disciplinary interview.
The case concerned an employee who refused to attend a disciplinary interview unless he was allowed to record the proceedings on his mobile phone. The municipality refused, and the interview was postponed a couple of days.
When the disciplinary interview was resumed, the employee continued to insist on recording the proceedings, even though he had been informed prior to the meeting that the municipality still would not allow the proceedings to be recorded. When the employee refused to leave his mobile phone outside the conference room, he was summarily dismissed for disobedience. He was sent home the same day without pay.
The following day, the usual consultation process was initiated and the employee was summarily dismissed with final effect almost three weeks later – with effect from the date when he was first sent home.
The lower court held that the summary dismissal was justified, and the employee therefore appealed to the High Court, which has now delivered its judgment.
The employer sets the framework
Before the High Court, the employee argued that he was entitled to record the proceedings at the interview because he disagreed with the wording of the minutes from the first such interview. He further argued that, in any case, he was entitled to notice pay during the 3-week consultation period and thus until the date when the summary dismissal became final.
The municipality maintained that the employee was not entitled to record the proceedings, arguing among other things that his interests would be adequately safeguarded at the interview. In addition, the municipality submitted that the effective date of the summary dismissal was the day when the employee was sent home as the reason why he was unable to perform his job during the consultation period was entirely due to his own circumstances.
The High Court held that the employee was required to attend in the disciplinary interview and that the municipality's decision not to allow him to record the proceedings was based on objective reasons. By not attending the interview on the terms set by the employer, the employee was in material breach of the employment relationship and the summary dismissal was therefore justified.
The High Court also agreed with the municipality that it was entitled to summarily dismiss the employee with effect from the day when he was originally sent home. Accordingly, the employee was not entitled to notice pay during the consultation period.