3. Apr 2017

A trusting dialogue

On appeal, the High Court has established that it is the employer who sets the framework for when ‎disciplinary interviews may be recorded. A municipality was therefore justified in summarily dismissing ‎an employee who insisted on recording the proceedings at a disciplinary interview.‎

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.‎

Norrbom Vinding notes

  • that the judgment shows that, by virtue of the employer's right to direct and control, it is for the ‎employer to set the framework as to how a disciplinary interview is to take place and the employer is ‎therefore also entitled to decide whether or not to allow the employee to record the proceedings; and
  • that the judgment is an example that a summary dismissal may be effective from before the date when ‎the employee is summarily dismissed with final effect (i.e. after the end of the consultation period), ‎and if the employee is unable to perform his job in the consultation period due to his own ‎circumstances, this will weigh against the employee.‎

Norrbom Vinding represented the municipality.‎

The above article is intended for general information only and does not constitute legal advice.

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Termination of employment