Intellectual Property Rights in Employment
The starting point is that the company you work for owns the results of your paid work. But what if you create something that is on the side of, or ou...
Advice and Tips
Whistleblowing in the Workplace
Written by Tekna’s legal department
Published: June 13 2023
As an employee you have the right to reveal information about unethical or illegal conditions at your workplace. Hired workers also have the right to report these conditions to their hiring company.
Whistleblowing in the workplace
The rules on whistleblowing are intended to contribute to a good climate for expression where employees can speak up and express themselves critically without risking any form of punishment or negative reactions.
Whistleblowing is an important core value in society in general and in the workplace. It is the employees who know the business best, and it is therefore important that they can speak up about reprehensible conditions at their own workplace. A high tolerance for whistleblowing can also contribute to openness, and in this way prevent new reprehensible conditions.
Reporting is an important core value in society in general and in the workplace. It is the employees who know the business best, and it is therefore important that they can speak out about objectionable conditions in their own workplace. Good ceiling height for notification can also contribute to transparency, and in this way prevent new objectionable circumstances.
Regulations on whistleblowing are included in the Working Environment Act (chapter 2A). This article discusses the right an employee has to ‘blow the whistle’, procedures to follow when doing so and organizational requirements for whistleblowing procedures – in addition to protecting whistleblowers from reprisals. Tekna’s legal department can offer advice to all parties involved when these cases arise.
Practice shows that it can be burdensome to come forward as a whistleblower. Many whistleblowers unfortunately experience reactions. There may also be some misunderstandings about what actually constitutes whistleblowing about reprehensible conditions. It is therefore important that an assessment is made before the whistleblowing is submitted, both of the information and the procedure for whistleblowing.
Employer’s obligation to establish whistleblowing procedures
Employers have an obligation to establish procedures for internal whistleblowing if their organization routinely employs at least 5 employees (see the Working Environment Act, section 2A-6).
These procedures must be worked out in cooperation with the organizations’ union representatives.
The procedures must be in writing and contain at the minimum:
- Encouragement to speak up about unethical/illegal wrongdoing
- A description of the whistleblowing process
- Procedures to follow for receiving, handling and following up whistleblowing
These procedures should be made easily available to every employee in the organization.
Right to reveal unethical/illegal conditions in the organization
An employee has the right to reveal unethical/illegal conditions in their organization. The Working Environment Act (section 2A-1) regulates the right to whistleblowing, and its provisions apply to all organizations in the private and public sectors at all job levels.
Certain individuals might have an obligation to expose wrongdoing. This obligation may be statutory or regulatory in nature, appearing for example in the Working Environment Act’s sections on working conditions (sections 2-3, nr 2, subsections b, d and e).
Unethical/Illegal conditions in the organization
The term ‘unethical/illegal conditions’ means criminal acts, breaches of statutory prohibitions and injunctions, breaches of the organization’s ethical guidelines as well as breaches of general ethical standards.
The Working Environment Act § 2 A-1 (2) lists a non-exhaustive list of examples of what may be reprehensible conditions. The lawmaker assumes that employees in principle have - and should have - freedom of speech, even if this speech may conflict with or harm the employer’s interests.
Expressions about conditions that only concern the employee’s own employment relationship are not considered whistleblowing in principle, unless they fall under some of the examples in the law. If, for example, one can demonstrate that one has been subjected to bullying or harassment, it may still be reprehensible conditions.
If the case involves a situation that isn’t unethical/illegal, there’s normally no cause for whistleblowing, either. So if the whistleblowing applies to conditions outside of the organization, it may be best to contact a regulatory agency. The warning would then generally not fall under the whistleblowing regulations in the Working Environment Act as this individual would not be considered an employee in the organization being exposed, but rather seen as a private citizen.
Justified whistleblowing
The Working Environment Act (section 2A-2) states that whistleblowing must take place in a justified manner. This requirement presents certain demands on the way in which the whistleblowing is conducted and isn’t meant to limit the right to speak up. It will always be prudent to speak up internally. Generally speaking, it takes a lot to be able to say that an employee’s whistleblowing isn’t justified.
While a justified process depends on a concrete assessment being made, the criterion for this assessment’s usually if an employee has a sound basis for their criticism. There’s also an emphasis on whether an employee has given a reasonable amount of consideration to their employer’s/organization’s side in the matter. Points here include if an employee has operated in good faith with regard to their information’s accuracy, who has said what to whom and in what manner, the kind of information being shared, its potential to cause harm as well as whether or not it’s of general interest.
Who can receive information?
Internally - It is always a good idea to check the internal guidelines for notification and how to proceed. Revealing information a supervisor or an individual appointed by the organization to receive such information is the most common way of bringing it to light. Similarly, it’s possible to reveal information to a company union representative or a company safety representative. These are justifiable approaches, as is revealing information in accordance with the organization’s own procedures.
External – Revealing information to a regulatory agency like the Norwegian Labour Inspection Authority or the Norwegian Data Protection Authority is possible and is regarded as justifiable whistleblowing. This also applies to the police. Regulatory authorities have signed a non-disclosure agreement with respect to keeping an employee’s name (or any other information that will identify him/her) confidential.
External – This includes the media or general public, meaning news organizations, blogs, and other digital channels. Revealing information to the media is possible in situations where internal whistleblowing has been followed in accordance with procedures yet has not been taken seriously. Also, the regulatory authorities should be informed before the general public learns of the news. It takes a lot before whistleblowing to the media is considered a justifiable action, and you should carefully consider if this is the correct procedure to follow. We recommend that you always contact Tekna’s legal department for advice and guidance before taking this step.
How to proceed?
Whistleblowing should be approached in accordance with the organization’s procedures. If the organization has not established these yet, whistleblowing can then be done in two ways:
Anonymously – This means that you send a letter or in some other way make the information known to the organization without revealing yourself as its source. Although anonymous whistleblowing is legal, it often leaves the employer without a firm foundation on which to investigate the information that’s been revealed.
Identified whistleblowing – This means that you reveal information in either written or oral form by asking for a meeting with your supervisor, company safety officer or company union representative. You should bring your documentation or any other evidence that backs up your assertions if available.
Prohibition against reprisals
Making reprisals against employees and hired workers ‘blow the whistle’ in accordance with the Working Environment Act (section A-4) is prohibited by law. Retaliation will be all forms of punishment or negative sanctions against a whistleblower. This may involve dismissal, a warning, a lower salary supplement or the cancellation of course participation. More hidden reprisals are also affected, but here challenges of proof may arise for the whistleblower. But the employer has the opportunity to make objections to the notice.
If the employer claims that the employee has not revealed information in a justified manner, it is the employer who must prove this claim.
The Anti-Discrimination Tribunal
Anyone who experiences retaliation after reporting can contact the Anti-Discrimination Tribunal, which is a low-threshold service for cases following retaliation for reporting. This tribunal can assess whether you have been subjected to retaliation after notification. Proceedings in the tribunal are in writing.
Tekna’s advice
For you the Tekna company union representative: As a representative you should participate in creating whistleblowing procedures in the organization. It’s important that they in turn ensure a thorough case processing and legal protection for both the whistleblower and any individual(s) targeted by the whistleblowing. This means that the case should be handled confidentially, and that all information related to the case must be stored in a safe place in accordance with the regulations in the Personal Data Act.
For you the Tekna member: We recommend that you always think things over carefully if you find yourself in a whistleblowing situation, which can sometimes be difficult to do. Your feelings about confidentiality rules and loyalty to your employer and colleagues can also make this assessment difficult. So please contact either your Tekna representative or Tekna’s legal department if you’re unsure of whether you should become a whistleblower and who you should reveal your information to. In addition, take the time to learn about your organization’s own rules on whistleblowing (if these exist).
More information
The Norwegian Labour Inspection Authority has a lot of relevant information on whistleblowing.
