In Norway, “whistleblowing” (“varsling” in Norwegian) is a term referring to “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 environment1.”
Norway has specific legislation for the protection of whistleblowers. The Norwegian legislation affords employees a statutory right to notify wrongdoing as well as it requires employers to develop internal reporting procedures.
2. Current legal situation
a. Public sector/ Private Sector
In 2007, Norway amended its Working Environment Act 2005 (the “WEA”) to add provisions for the protection of employees who report “censurable conditions” in the organization. These provisions give the employees the right to report, and specifically prohibit retaliation against an employee who makes use of this right.
The Act aims at securing a working environment providing a basis for a healthy and meaningful working situation (…)2. The Act applies to all employees3, with the exceptions of seafaring and fisheries, as well as military aviation4 (which are regulated separately).
As regards to what can be reported Section 2:4 of the WEA 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.
3. Disclosure procedures
The employer should establish routines for internal notification or implement other measures that enable the employees to make the use of the right. Such routines, should at least, explain when the right to notify can be used, to whom the notification shall be given, which procedures should be followed and how the report will be handled by the employer.
There are no specific requirements in relation to how the procedure has to be set up, and the company may use both hotlines and websites.
According to the Preparatory Papers, the boundaries for what may be considered an appropriate procedure is set by the employees’ duty of loyalty also with consideration to the freedom of speech and the greater public interest of the information disclosed. The assessment for whether an employee has exceeded his or hers possibility to whistleblow should consider a number of guidelines, according to the preparatory papers5. Among them for example, the potential damage to the employer’s interests – in this case, the greater the damage to the employer’s interests, the greater the duty of loyalty for the employee. Likewise, the public interest of the information is of importance since the greater the 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.
Regarding the remedies afforded for the infringement of statutory rights, WEA contains a presumption that retaliation has occurred.
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.
Confidentiality: 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.
The Norwegian regulation could serve as a 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 agreement, since the vagueness of the Norwegian legislation in relation to “censurable conditions” and “appropriate procedures” is potentially problematic. At the same time, 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.
Regarding the protection for whistleblowers in WEA:
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.6
During the same year, another intermediate appeals court considered whether illegal retaliations according to section 2:5 had taken place.7
7. Relevant Legislation
Working Environment Act:
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.
4 Section 1:2 The scope of the Act (1)The Act shall apply to undertakings that engage employees unless otherwise explicitly provided by the Act. (2)The following are exempt from the Act: a) shipping, hunting and fishing, including processing of the catch on board ship, b) 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.