This report is designed to provide an overview of whistleblowing law in Norway in order to establish best practice legislation.
Norway has specific legislation on the protection of “whistleblowers” as the Norwegian legislation affords employees a statutory right to notify wrongdoing as well as it requires employers to develop internal reporting procedures.
The Norwegian regulation could serve as model as it encourages internal whistleblowing and simultaneously makes it possible to keep the identity of the whistleblower confidential. However, it can be recommended that what can be reported should be more precisely deﬁned, either by law or collective bargaining.
Definition Of “Whistleblowing” In Norway
According to the Preparatory Papers, “whistleblowing” (“varsling” in Norwegian) is a term implying “employees speaking out on critical conditions within the company”. “Critical conditions” implies conditions that are contrary to law or other ethical standards such as corruption, danger to life and health and bad work environment.”1 There is no definition to be found in the legislation itself.
The Work Environment Act 2005 (Arbeidsmiljøloven)
The Working Environment Act 2005 (WEA)2 applies to all employees, with the exception of seafaring and fisheries, as well as military aviation, which are regulated by separate regulations.
Section 1:1 The purpose of the Act
The purpose of the Act is:
- to secure a working environment that provides a basis for a healthy and meaningful working situation, that affords full safety from harmful physical and mental influences and that has a standard of welfare at all times consistent with the level of technological and social development of society,
- to ensure sound conditions of employment and equality of treatment at work,
- to facilitate adaptations of the individual employee’s working situation in relation to his or her capabilities and circumstances of life,
- to provide a basis whereby the employer and the employees of undertak- ings may themselves safeguard and develop their working environment in cooperation with the employers’ and employees’ organizations and with the requisite guidance and supervision of the public authorities,
- to foster inclusive working conditions.
Section 1:2 The scope of the Act
- The Act shall apply to undertakings that engage employees unless otherwise explicitly provided by the Act.
The following are exempt from the Act:
- shipping, hunting and fishing, including processing of the catch on board ship,
- military aviation, which is covered by the Aviation Act. The Ministry may issue regulations concerning exceptions from the Act for civil aviation and state aviation other than military aviation and concerning special provisions for such aviation.
- The King may issue regulations concerning the provisions of chapters 14, 15, 16 and 17 and concerning the extent to which these provisions shall apply to employees who are subject to the Act of 4 March 1983 No. 3 relating to civil servants, etc. or who are senior civil servants.
- The King may by regulation provide that parts of the public administration shall wholly or partly be excepted from the Act when the activity is of such a special nature that it is difficult to adapt it to the provisions of the Act.
Section 1:8 The employee and the employer
- For the purposes of this Act, employee shall mean anyone who performs work in the service of another.
- For the purposes of this Act, employer shall mean anyone who has engaged an employee to perform work in his service. The provisions of this Act relating to the employer shall apply correspondingly to a person managing the undertaking in the employer’s stead.
Protection for whistleblowing
Section 2:4 Notification3 concerning censurable conditions at the undertaking
- An employee has a right to notify concerning censurable conditions at the undertaking.
- The employee shall follow an appropriate procedure in connection with such notification. The employee has notwithstanding the right to notify in accordance with the duty to notify or the undertaking’s routines for notification. The same applies to notification to supervisory authorities or other public authorities.
- The employer has the burden of proof that notification has been made in breach of this provision.
As regards to what can be reported, the section simply refers to “censurable conditions” which allows great ﬂexibility for interpretation. The preparatory papers mention conditions concerning the work environment, negative culture, corruption, illegality and unethical or harmful incidents. Nevertheless, because the legislation is more accessible than the preparatory papers, it might be argued that WEA should be more speciﬁc about what matters can be disclosed.
According to WEA Section 2:4 (2), the employee shall follow an “appropriate procedure” in connection with whistleblowing. The legislation says nothing about how this procedure should be conducted in order to be appropriate, something that should be included in the legislation The appropriate procedure can be found in the Preparatory Papers.4
According to the Preparatory Papers, the boundaries for what may be considered an appropriate procedure are set by the employees’ duty of loyalty. Consideration to the freedom of speech should, as a starting point, always be more important, and speaking ones’ mind should to a very large extent be acceptable — the greater public interest in the information, the greater protection of the expression. The assessment for whether an employee has exceeded his or hers possibility to whistle blow should consider the ten following guidelines, according to the preparatory papers.
Damage to the employer’s interests
The greater the damage on the employer’s interests, the greater the duty of loyalty for the employee. The employer may only call on the duty of loyalty for legitimate interests. The duty of loyalty is therefore not applicable on illegal or unethical actions. Any restrictions on freedom of expression must have compelling reasons. The restrictions must, according to the Ombudsman, be limited to what is necessary for the employee to fulfill his or hers work obligations and must have resulted in an obvious risk of damage to the employer’s interests.
Public interest of the information
In general, the greater public interest, the more entitled is the employee to blow the whistle. Serious matters, such as threat to life and health, as well as corruption, are examples that may be legitimate to inform the public about.
The employee’s position within the company
The employee’s position within the company may play a role in assessing whether the whistleblowing is unfair or not. A senior employee will have greater access to information, greater influence in the business and easier to get a response to his or hers statements. Therefore, a more senior employee is assumed to have more strict loyalty duties.
Breach of statutory duty of confidentiality
It is, obviously, regarded as disloyal to violate the statutory duty of confidentiality. It will breach the duty of loyalty not only in relation to the employer, but may also breach the duty of loyalty towards relationships with the public, patients, clients, customers etc.
Internal or external whistleblowing
If the enterprise has an internal whistleblowing procedure, it is expected that a concern will be processed in accordance with that procedure. In general, internal reporting will be considered appropriate. Reporting wrongdoing to union representatives and/or the health and security inspector and to supervisory authorities, for example, the Norwegian Directorate of Labour Inspection, is always regarded as appropriate.
In relation to external whistleblowing, the main considerations are that: the employee has reasonable grounds for reporting the concern publicly; he or she has reported the alleged wrongdoing through internal channels; and the concern or wrongdoing is of public interest.
Internal whistleblowing should first be attempted
Exceptionally, if the matter is raised in a totally unacceptable way and the work environment or labour relations within the enterprise are seriously damaged, internal whistleblowing might be regarded as inappropriate. In addition, if any of the following circumstances apply, the preparatory documents suggest that it would be more appropriate to make a public disclosure: the employee has reason to believe that the internal procedures would be unworkable; there has been a criminal act or other serious event; the employee has reason to believe that he or she will suffer retaliation or fears that evidence will be destroyed.
There should not be a too strict requirement for the employee’s good faith. The employee should be granted a relatively wide margin of error. If an employee has done what he or she is capable of in order to whistle blow correct facts, this is sufficient, even if the information later proves to be incorrect.
The requirement for good faith should, according to the Preliminary Papers, be based on what the employee knew or should have known at the time of the whistleblowing. The requirements will therefore vary with the character of information, the employee’s position and the situation in which the employee makes the information available. For example, there are more strict requirements for whistleblowing to the media than whistleblowing internally within the company or to the authorities. Furthermore, the result of the employee not whistleblowing has to be taken into account. The time element may therefore be of importance; it may be that the employee has little time to investigate in times of danger to life or health, or destruction of evidence.
Form and manner
In addition to the above mentioned requirements for an “appropriate procedure”, such as what information channel the employee uses and whether or not the employee first turned to internal whistleblowing, there is also an emphasis on the expression and language used by the employee. In the Court of Appeal Ruling of 10 February 1997 (the Seafarer’s Union), it was stated that there should be a requirement for sobriety and balance in relation to the form. Expressions that have a sober, factual and balanced form are thus probably protected to a greater extent than expressions which in form appears to be improper.
A factor to be considered in relation to this is whether the employee has made contact with the media on their own initiative, or whether the information is given under preassure from the media. In several Labour Court judgments, the court has taken into consideration whether or not the employee was approached by the media (ARD 1986, p. 189 and ARD 1975, p. 55).
The announcement of the censurable conditions should appear to be an effective and appropriate instrument for bringing the conditions to an end.
The motive behind the whistleblowing
The publication should not be the intention per se, but the aim should be to address the censurable conditions. However, this requirement should not be given too much importance according to the Preparatory Papers as it may breach the freedom of expression in Article 100 of the Constitution (see below).
Duty for the employer to develop routines for internal whistleblowing
Section 3:6 Obligation to facilitate notification
The employer shall, in connection with systematic health, environment and safety work, develop routines for internal notification or implement other measures that facilitate internal notification concerning censurable conditions at the undertaking pursuant to section 2-4, if the circumstances in the undertaking so indicate.
It is worthy of comment that WEA Section 3:6 refers to developing “routines for internal notiﬁcation” but makes no mention of external disclosures. This is potentially troublesome given that WEA Section 2:4 contains a general right to notify “censurable conditions”.
Section 3:6 is silent on how these routines should be conducted which can be seen as problematic. The legislation should contain a more detailed instruction on how these routines should be developed.
The Norwegian Labour Inspection Authority has put together a suggestion on how to develop routines for internal whistleblowing.5
- The procedures should have a reference to the relevant laws and regulations and any comment on the ethical norms as particularly emphasized in the business (business ethics platform).
- Procedures should say to who or where the whistleblowing should be reported. The routines may include different ways of whistleblowing, such as via telephone, e-mail, letter or fax.
- It will often be an advantage if the employees are given the opportunity to whistle blow externally. It should therefore be considered whether to appoint an external or internal person, office, department, organization, or entity, to receive reports of considerable conditions. The safety representative or representatives within the company may have such a role. The one receiving messages will report to those with decision-making authority in the company, for example the board.
- It may be considered whether to create a scheme that adds to an anonymous form of whistleblowing. To stand up and criticize the employees or colleagues within the company can be a burden that many cannot bear to take. This may lead to employees keeping silent about the criticism that the employer should know about. An opportunity for employees to whistle blow anonymously will be able to make it easier to speak out. The disadvantage is that it can be difficult to investigate if the employer cannot make follow-up questions to the alerts. One should note that a high degree of anonymity may also give rise to suspicion and insecurity among the employees.
- The whistleblower’s identity should be treated as confidential information, and should as far as possible not be disclosed to the person notified, the management or the colleagues. This may encourage more employees daring to whistle blow.
- There should be established procedures for how the whistleblowing is handled within the business. It must focus on the critical-equal conditions and not on those who have spoken out. It is important that the messages are seriously considered, that the allegations be investigated properly and that cleared up any criticism. The whistleblower should be informed within a certain deadline about what’s happened with the case.
- The procedures must be designed in a way that maintains the Personal Data Act’s requirements for collecting, storing and processing of personal data, which also applies to information about criticism relating to named individuals. These rules protect both the person about whom it is whistle blown, and the whistleblower itself. The persons about who it is whistle blown will be entitled to information about and access to information about themselves, which only exceptionally may be denied. The information may not be used for a purpose that is incompatible with the original purpose. Procedures must be established at such a way that data security requirements are met, including that information shall be destroyed after a certain time. Treatment should be reported to the Data Inspectorate. The Data Inspectorate will be able to provide more information about the requirements of the Personal Data Act (www.datatilsynet.no).
- Whistleblowing procedures can only expand or clarify the right to whistleblowing. The employer may, for example, not require the employees to keep criminal matters and other serious conditions internally within the business.
- Procedures should be written, accessible and known to the all employees.
Duty to report misbehavior
Section 2:3 Employees’ duty to cooperate
- Employees shall cooperate on the design, implementation and follow-up of the undertaking’s systematic work on health, environment and safety. Employees shall take part in the organized safety and environmental work of the undertaking and shall actively cooperate on implementation of measures to create a satisfactory and safe working environment.
- use the prescribed protective equipment, exercise caution and otherwise contribute to prevention of accidents and injury to health,
- immediately notify the employer and the safety representative and to the extent necessary other employees when employees become aware of faults or defects that may involve danger to life or health and they themselves are unable to remedy the fault or defect,
- interrupt work if the employees consider that it cannot continue without involving danger to life or health,
- ensure that the employer or the safety representative is notified as soon as employees become aware of harassment or discrimination at the workplace,
- notify the employer if an employee suffers injury at work or contracts diseases which the employee believes to result from the work or conditions at the working premises,
- cooperate on preparation and implementation of follow-up plans in connection with total or partial absence from work owing to accidents, sickness, fatigue or the like,
- take part in a dialogue meeting when summoned by the employer, cf. section 4-6, fourth paragraph.
- obey instructions issued by the Labour Inspection Authority.
- Employees charged with directing or supervising other employees shall ensure that safety and health are taken into consideration when work that comes under their areas of responsibility is being planned and carried out.
Remedies for the infringement of the protection for whistleblowers
Section 2:5 Protection against retaliation in connection with notification
- Retaliation against an employee who notifies pursuant to section 2-4 is prohibited. If the employee submits information that gives reason to believe that retaliation in breach of the first sentence has taken place, it shall be assumed that such retaliation has taken place unless the employer substantiates otherwise.
- The first paragraph applies correspondingly in connection with retaliation against an employee who makes known that the right to notify pursuant to section 2-4 will be invoked, for example by providing information.
- Anyone who has been subjected to retaliation in breach of the first or second paragraph may claim compensation without regard to the fault of the employer. The compensation shall be fixed at the amount the court deems reasonable in view of the circumstances of the parties and other facts of the case. Compensation for financial loss may be claimed pursuant to the normal rules.
Employees’ right to whistle blow according to the WEA, may only be limited by law. Confidentiality agreements, instructions, regulations etc. that limit an employee’s right to whistle blow are therefore illegal.
Due to the fact that the WEA is relatively new, not much case law exist concerning this act.
A famous case worth mentioning, before the introducing of WEA 2005, is the “Siemens case”. In 2004, Per-Yngve Monsen, a former employee at Siemens Business Services (SBS), blew the whistle on probable violations of the law in the way SBS handled IT supplies to the Norwegian Armed Forces (NAF). Following the alert to Siemens headquarters in Munich about the matter, Mr. Monsen was informed by the Norwegian management that SBS was facing redundancy, and that he would have to resign from his position. He brought an employment tribunal claim arguing that it was the alert about overbilling and not the redundancy which had caused him to lose his job. The court found that the dismissal was unfair, and thus ruled it invalid. Mr . Monsen was awarded a compensation of NOK 1.5 million. The verdict pointed out that Mr. Monsen was probably right about SBS overbilling the NAF, something which led the NAF to investigate the case. They also referred to an earlier case which reads that a “whistleblower” – a vigilant coworker with a critical attitude who dares to speak out/report matters – is an asset both to the company and to society. That is why one must accept critical remarks within generous limits.6
There are a few cases from the intermediate appellate court7 that are of interest regarding the protection for whistleblowers in WEA 2005.
A ruling from 2009 considered whether the reprisals by a department manager at one of the branches of a private company against a newly recruited technician were a violation of section 2:5 WEA.8 The technician had, prior to the reprisals (that consisted of harassment and bullying), blown the whistle about censurable conditions at the workplace, including radioactive material being transported by non-certified drivers, places where radiation work was performed were not cordoned off to the public and the fact that isotopes were not stored in a separate cabinet. These conditions were contrary to the National radiation protection regulations.
The appellate court firstly stated that these conditions were “censurable conditions” according to section 2:4 WEA, as they exposed the public to unnecessary health risks.
The court thereafter made the assessment whether the technician’s whistleblowing was legitimate. It was found that the technician primarily turned to the department manager, who was the technician’s immediate superior. Due to the fact that he got no response from the department manager, he thereafter turned to the company’s CEO. The CEO took the criticism seriously but took very long time to do anything about the situations. The technician therefore turned to the Norwegian Labour Inspection Authority. The court found that this approach was correct and justifiable.
The final step in the court’s evaluation was whether the employee had been subject to retaliation in violation of section 2:5 (1) WEA. The court concluded that the department head, which was the one who conducted the reprisals, was to be regarded as an employer (see section 1:8 (2) WEA), as he lead the business with that branch.
The company did not meet its burden of proof as set out in section 2:5 (1) WEA and the technician had thus been subjected to reprisals. The employee was awarded damages in accordance with section 2:5 (3), wherein, according to the preparatory paperrs, the reprisals’ nature and severity should be taken into account. This case was not granted leave to appeal to the Supreme Court.
During the same year, another intermediate appeals court considered whether illegal retaliations according to section 2:5 had taken place.9 A woman, who had been an illegal temporary employee with one of the municipality’s elderly care homes for years, made a complaint to the municipality. According to the complaint, the new manager for one of the elderly homes had terrible mood swings, which took the form of derogatory comments on both the staff and patients. After this complaint, the woman did not receive any more temporary positions, although there was a great need for her at the elderly home in question.
The municipality claimed that the woman should not be seen as a whistleblower according to section 2:4 WEA as the municipality was already aware of the criticism before she blew the whistle. The court stated that the fact that the employer already knows about the censurable conditions should not be given any consideration. The court stated that violations according to section 2:5 WEA had taken place since the municipality could not show otherwise and the woman was therefore entitled to damages.
Regarding the duty of loyalty, two bills advocated before the introducing of the WEA that there should be an explicit requirement in section 2:4 that whistleblowing may only be done in good faith. However, this was not included in the WEA, which according to Professor Henning Jakhelln must be seen as a statement that the duty of loyalty no longer is as far-reaching as before. Due to this decreased need for loyalty, it is likely that previous case law regarding this duty no longer is relevant.10
Freedom of Speech
For situations outside the scope of WEA, Norwegians have a right to freedom of speech according to the constitution.
The Constitution, Article 100 (Grunnloven § 100)11
There shall be freedom of expression.
No person may be held liable in law for having imparted or received information, ideas or messages unless this can be justified in relation to the grounds for freedom of expression, which are the seeking of truth, the promotion of democracy and the individual’s freedom to form opinions. Such legal liability shall be prescribed by law.
Everyone shall be free to speak his mind frankly on the administration of the State and on any other subject whatsoever. Clearly defined limitations to this right may only be imposed when particularly weighty considerations so justify in relation to the grounds for freedom of expression.
Prior censorship and other preventive measures may not be applied unless so required in order to protect children and young persons from the harmful influence of moving pictures. Censorship of letters may only be imposed in institutions.
Everyone has a right of access to documents of the State and municipal administration and a right to follow the proceedings of the courts and democratically elected bodies. Limitations to this right may be prescribed by law to protect the privacy of the individual or for other weighty reasons.
It is the responsibility of the authorities of the State to create conditions that facilitate open and enlightened public discourse.
The third subsection of the article is directly applicable between all individuals. This subsection may therefore be applicable between a private employer and his/her employees. Employees’ freedom of speech is limited by their duty of loyalty, i.e. following an “appropriate procedure” when disclosing information according to this provision (see above).
- No definition of the term “whistleblowing” in the legislation.
- The vagueness of the Norwegian legislation in relation to “censurable conditions” and “appropriate procedures” is potentially problematic.
- WEA Section 2:4 does not cover former employees.
- WEA Section 3:6 states an obligation for employers to develop routines for internal notiﬁcation but makes no mention of external disclosures.
- If the company does not have internal routines it would be difﬁcult to conclude that an employee has reported a concern in an inappropriate manner.
- It is not clear whether the WEA’s right to notify covers both past and future circumstances.
- Regarding the remedies afforded for the infringement of statutory rights, WEA contains a presumption that retaliation has occurred.
- Greater clarity in terms of what should be reported and how it should be done might be useful for potential whistleblowers in Norway, especially in relation to external disclosures.
1 See the Preparatory Papers, Ot.prp. nr. 84 (2005-2006), p. 7. Obtained at http://www.regjeringen.no/Rpub/OTP/20052006/084/PDFS/OTP200520060084000DDDPDFS.pdf [28th of December 2011].
2 The translation of WEA in this report is official. Obtained from Directorate of Labour Inspection, March 2007. May be found on www.ilo.org [27th of Dec 2011]: http://www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—ilo_aids/documents/legaldocument/wcms_127984.pdf.
5 A link to the brochure in Norwegian may be found here: http://www.arbeidstilsynet.no/binfil/download2.php?tid=92254.
11 Official translation. Obtained at http://www.stortinget.no/en/In-English/About-the-Storting/The-Constitution/The-Constitution/ [28th of Dec 2011].