Specific legislation aimed at protecting whistleblowers is non-existent in Denmark. The concept of whistleblowing is said to be a “very unfamiliar method of revealing fraud”1. The degree of protections granted to a whistleblower in Denmark is close to nothing, mainly due to two factors: first, the duty of loyalty considered a major principle governing employment relationships in Denmark; and second, the limited rights employees posess when dismissed without cause, which consist in small amount of damges and scarce chance of reinstament.
2. Current legal situation
a. Public sector
The duty of loyalty often conflicts with freedom of speech. This becomes most evident in the public sector.
Persons working in the state sector are as a main rule employed under collective agreements or as civil servants. The employment terms for civil servants are laid down in the Civil Servants Act2 and the Civil Servants’ Pension Act as well as determined by collective agreement. These Acts regulate issues regarding official duties, disciplinary proceedings, dismissal and pension. Pay and other employment terms are agreed between the Ministry of Finance and the central organizations. The Public Administration Act3 states provisions regarding professional secrecy for public employees and the Danish Criminal Code penalizes public employees who breach their duty of confidentiality
b. Private Sector
In Denmark the main source of labor law is collective agreemet. Some statutes apply to all employees whereas others are limited to “salaried employees”.
The Act on the Legal Relationship between Employers and Salaried Employees (the ‘ASE’) contains certain minimum rights in favor of the employees. Such minimum rights include termination notices, severance payments, compensation for unfair dismissals, absence due to illness, regulation of and compensation for non-competition and non-solicitation clauses, etc. The act cannot be derogated from to the detriment of the employee.
3. Disclosure procedures
In Denmark, the national Danish Data Protection Agency (“DPA”) has issued a set of general non-binding guidelines regarding the notification of whistleblowing systems (the ‘Guidelines’)4. While the purpose of the document is to instruct on how the notification form should be filled, it also contains useful information on what the DPA’s approach to whistleblowing hotlines are. The Guidelines emphasize that a whistleblowing system must always be an alternative voluntary reporting mechanism for employees. Therefore, the normal – and according to the DPA, preferred – channels of communication within the company must always be available to the employees, notwithstanding the existence of the whistleblowing system.
As part of Danish Public Administration, an official can not be legally dismissed for reporting in good faith suspiciouns of any crimes, regardless of whether reporting has first been made internally or directly to the law enforcement authorities.
The Danish Labour Code does not offer any protection against dismissal for employees reporting suspicions of bribery for example. There is no statutory protection against unfair dismissal. However, protection against unlawful dismissal and other whistleblower protection are accordingly enshirined in many collective agreements.
A large amount of employees are offered some protection through the Act on the Legal Relationship between The Employers and Salaried Employees. However, whistleblowers protection in the private sector is rather weak in Demark.
The so called “flexisecurity model” is not a positive element for the protection of whistleblowers in Denmark. Danish employees have a wide-ranging duty of loyalty towards their employer.
- The regulation of the Danish labor market is very limited as the social partners agree most rules.
- There is no statutory protection against dismissals. The grounds for dismissal may be established through collective bargaining.
Only a few Danish cases have dealt specifically with employees reporting illegal activities.
The Special Court of Indictment and Revision found that the former Minister of Justice gave illegal instructions to his staff regarding the denial of Tamil family reunion. Several of the officers were dismissed after the trial. The judges suggested that the staff should have addressed the issue following a specific pattern: first, the problem must be dealt with internally, by reporting to a superior; second, if such measures fail, action may be taken externally by contacting the authorities, union, or shop steward. Resorting to the media must only be used as an ultimate measure.
A former army intelligence officer, Frank Grevil, passed on some classified information concerning the threat reports from Iraq. The classified information that major Frank Søholm Grevil leaked in 2004, came from the very stronghold of secrets, The Military Intelligence Service, FET.
In its verdict of 23 September 2005 the Eastern Division of the Danish High Court found Grevil guilty of an offence under section 152 (2), cf. section 152 (1), of the Danish Criminal Code in that in mid-February 2004, in his capacity as a public servant with the Danish Defence Intelligence Service and under aggravating circumstances, he disclosed confidential information from the Danish Defence Intelligence Service without authorisation to Michael Bjerre, a journalist with Berlingske Tidende. Grevil was sentenced to six months in prison.
7. Relevant Legislation
Act on the Legal Relationship between Employers and Salaried Employees (Consolidation Act No 68 of January 21, 2005):
The Danish Act on Processing of Personal Data:
2 No full translation available. Extracts of the law may be found here: http://perst.dk/Publications/2005/Employment%20in%20the%20Danish%20State%20Sector/Annexes.aspx