Legislation protecting whistle-blowers comes into force

In January 2007, new legislation aimed at protecting employees who report misconduct in the organisation for which they work came into effect. The legislation protecting so-called ‘whistle-blowers’ was originally proposed by a working group under the auspices of the Norwegian Ministry of Labour and Social Inclusion in late 2005. The new legislation has received the support of the trade unions and been partly supported by the employer organisations.

On 1 January 2007, new regulations aimed at protecting employees who report misconduct in the enterprise for which they work – so-called whistle-blowers – came into force. The new legislation, which is part of the Act relating to workers’ protection and working environment (Arbeidsmiljøloven, AML (in Norwegian)), is the outcome of an ongoing debate on how to regulate an aspect of working life that has attracted increasing attention in recent years.

Background

In December 2005, the Ministry of Labour and Social Inclusion (Arbeids- og inkluderingsdepartementet, AID) issued a bill aimed at formalising the principle of freedom of speech for employees, as well as protecting employees who report misconduct in the enterprise for which they work. The proposed bill was subsequently discussed among the relevant labour market actors at the end of 2005 (NO0601103F), receiving a mixed response. While the trade unions were largely in favour of the bill, only some of the employers supported its introduction. Meanwhile, the proposed bill was widely criticised by the mass media, non-governmental organisations (NGOs) as well as the organisation Transparency International Norway (TI Norge). Some adjustments were therefore deemed necessary in order to address the objections put forward.

Provisions of new legislation

The AID said that the basic aim of the proposal was to protect employees – or so-called whistle-blowers – who report misconduct in the enterprise for which they work. Therefore, a new article 2–4 of the AML has been adopted. The main objective of the new regulations is to contribute to the disclosure of ‘unwanted practices’ within a company, thus benefiting both society and the individual company. Unwanted practices refer to criminal practices as well as breaches of companies’ ethical standards, along with more universally accepted ethical standards.

Reporting of misconduct

The new article stipulates how such misconduct should be reported. Accordingly, it states that a notification has to be justifiable. If the notification is made in accordance with ‘a duty to notify’ or with company directives, it is considered justified. Notifying a safety representative or trade union representative will be considered reasonable, as will notifying public authorities or supervisory authorities. However, a notification that unnecessarily harms the interests of the employer will not be accepted. Thus, notifying malpractices within the company will generally be considered reasonable; however, more proof will be needed to justify the public exposure of a notification. Therefore, the burden of proof will lie with the employer in relation to a notification being unjustifiable.

Retaliation

Retaliation against an employee who reports malpractices in pursuance with article 2–4 of the AML is, according to the new article 2–5, prohibited. This proposal received support from both trade unions and, with some exceptions, the employer organisations. The lawfulness of retaliations linked to other statements will have to be judged on the basis of the general employment protection rules.

The principle of shared burden of proof will apply to disputes regarding retaliation, in addition to a ‘no-fault liability principle’ in relation to non-financial loss. The employers argued unsuccessfully that the combination of these two principles would have unreasonable consequences for the companies. However, similar provisions already exist in the law prohibiting discrimination.

Employers’ duty

Moreover, a duty vested on the employer to facilitate whistle-blowing is to be established under article 3–6, as a part of the general health and safety obligations, where the conditions within the enterprise necessitate it. Both the employers and employee representatives were in favour of such a provision. However, the trade unions expressed concerns that the duty to undertake such measures is limited, and fear that only a few companies will consider themselves as falling within the scope of this provision.

Commentary

While the new legislation aims to afford better protection to whistle-blowers, it should be noted that the main objective is to create an internal climate in companies where employees feel that they can express their point of view without fearing sanctions. Facilitating whistle-blowing as part of the health and safety measures within a company should therefore constitute the most important impact of the new legislation. However, a growing trend has emerged, particularly among local authorities, of facilitating anonymous ways of reporting misconduct. On the one hand, this could be viewed as a positive measure, especially in cases where serious crimes, such as company corruption, may have been committed. However, it may also prevent employees from sharing their critical thoughts openly, thereby creating a climate within companies where people are not encouraged to air their opinions through internal discussions.

Kristin Alsos, Fafo Institute for Labour and Social Research