Use of recruitment letter to fulfil the obligation to offer work

Finnish Employment Contracts Act (Chapter 7, Section 4) regulates employer's obligation to offer work in a situation where the employment has been terminated due to financial, production-related or reorganization grounds i.e. collective reasons. Employees shall during the period of notice be primarily offered work that is equivalent to that defined in their employment contract and, if there is no such work available, employees shall be offered other work equivalent to their training, professional skills or experience. Many companies, especially larger ones, have used recruitment letters listing several different vacancies sent to redundant employees to meet this requirement. Now the Supreme Court of Finland has ruled on the use of such recruitment letter as a means of offering work.

The Supreme Court of Finland – judgment KKO 2022:33

According to the judgment KKO 2022:33 of the Supreme Court of Finland (issued on 13 May 2022), a nationwide company as an employer had not fulfilled its obligation to offer work under Chapter 7, Section 4 of the Finnish Employment Contracts Act by sending the employee weekly recruitment letters listing all the positions that became vacant company-wide during the employee’s period of notice. In these letters, the employees were asked to inform the employer of which open positions they were interested in, which were subsequently offered to them. The letters, therefore, required the employees to be active in screening for suitable work.

The company justified the use of the recruitment letters by stating that it was particularly suitable for them due to the company’s size and national scope. According to the company, the recruitment letters gave the redundant employees in general the opportunity to apply for a job that at least matched their training, professional skills and experience. In addition, the company stressed that the redundant employee in question had been asked to fill out a skills assessment form, but the employee had not filled it. The company stated that had the employee filled the form, this would have allowed the employee to inform any preferences for the jobs to be offered to the employee, either on a regional basis or based on the content of the job. This would have allowed the company the opportunity to possibly offer the employee more suitable jobs.

The Supreme Court found that, in a large national company, the use of a recruitment letter sent simultaneously to several redundant employees containing information on vacancies in the company may, in principle, fulfil the obligation to offer work. However, the Supreme Court ruled that the recruitment letter should not be non-personalised. By this, the Supreme Court meant that the recruitment letter should be indeed personalised for the redundant employee in a way that the listed jobs were selected on a case-by-case basis, taking into account the employee’s training, professional skills and work history, so that the jobs offered would be suitable for the employee in question. In this case, the company had sent the employee a 15–20-page letter listing all the vacancies open in the company which naturally did not meet the requirement of personalisation.

The Supreme Court also found that the company could not be relieved from its obligation by requiring the employee to complete a skills assessment form to get more suitable work offers. Even the fact that the employee did not complete the requested form did not matter, as it was an obligation for the employer to make an individualised and personalised offer of work to the employee without reliance on the employee’s own activity.

Observations on the judgment

To sum up, sending a recruitment letter remains lawful in certain situations, but employers must pay attention to the way in which the redundant employees are offered a new job in the company. Firstly, the work must be offered on a personal basis as an alternative to the expiry of employment, for example with a personalised recruitment letter that considers the employee's training, professional skills and experience. The employer should therefore clarify these questions with the employee at the time of giving notice at the latest. Hence, it is acceptable to offer several jobs in one recruitment letter, but the jobs must be at least somehow suitable for the employee in question. Secondly, employers themselves must be active in providing jobs. Thus, an employee's passivity (for example, failure to complete a skills assessment form) does not exempt the employer from its obligations. Finally, when sending the recruitment letter, the company should make it clear to the employee that such a letter serves as a way of fulfilling an obligation to offer the work.