Stronger protection proposed for whistle-blowers

In December 2005, new legislation on freedom of speech at work was proposed in Norway. Among other changes, the new rules would strengthen the protection for employees who report on misconduct in the enterprise where they work - known as 'whistle-blowers'.

In December 2005, recommendations for new legislation on freedom of speech in working life were made public by the Ministry of Labour and Social Inclusion (Arbeids- og inkluderingsdepartementet). The proposed new rules include a right for employees freely to report on the enterprise's general activities of relevance, and in particular a right to report misconduct carried out within the enterprise. The proposals entail a clarification of the existing legal framework, but also a strengthening of the protection of employees reporting misconduct at the workplace. The issue of 'whistle-blowing' in working life has recently been placed on the agenda, among others by public sector trade unions. Research suggests that many employees in public sector services witness misconduct at their place of work, and that such misconduct is on the whole brought into the open.

Proposal for new legislation

The new recommendations on freedom of speech at work (Ansattes ytringsfrihet, Arbeids- og sosialdepartementet, Arbeidsgrupperapport, 21 December 2005) are the result of the work of an internal departmental working group. Representatives from social partner organisations and other relevant bodies, as well as experts in the field, assisted the working group with comments and suggestions. The issue of freedom of speech in working life arose in connection with a recent revision of the Act relating to worker protection and the working environment (AML) (NO0506102F and NO0512103N). Discussion was also fuelled by the fact that a commission set up to look at freedom of speech drew attention to the importance of regulating aspects of employees' freedom of speech (and as such clarifying the legal framework).

The departmental working group considered various aspects of the issue of freedom of speech and whistle-blowing, and has put forward a proposal for changes to the law. The main points are as follows:

• the employee has a right to freedom of speech on matters relating to the general activities of the enterprise, including political and more professional matters. This right must be managed in such a way that it does not impose unnecessary harm on the legitimate and important interests of the employer;

• the employee has a right to report on misconduct within the enterprise. Such reporting must be carried out in a responsible manner. Where such reports are made public, this should as a main rule also be carried out in a responsible manner, taking into consideration whether or not it is in the public interest, and the extent to which initial steps have been taken by the employee to report on the matter within the enterprise. It is recognised, however, that the latter requirement is not always possible to fulfil;

• the employer has a duty to facilitate whistle-blowing. If necessitated by conditions within the enterprise, guidelines for whistle-blowing should be established or other measures implemented;

• there should be protection against retaliation for employees who take advantage of their right to freedom of speech. This applies both to the more general right to freedom of speech as well as in relation to whistle-blowing; and

• the principle of shared burden of proof should apply - ie the employer must prove that retaliation has not taken place in cases where the employee is able to prove the probability of such retaliation taking place. Moreover, a no-fault liability principle should be introduced for non-financial loss.

The proposed measures will be introduced into the AML. The Ministry aims to issue a proposal for the relevant legislative changes in the spring of 2006, following consultations.

Whistle-blowing in Norway

Reporting misconduct in working life has recently risen up the agenda, partly because several public sector trade unions have identified it as a problem affecting their members. Information on whistle-blowing in working life is scarce, although several studies have been undertaken in recent years. The results of a study based on interviews with employees in the health/social and school sectors in eight municipalities was made public in the autumn of 2005 (Varsling i norsk arbeidsliv. Hva betyr det og hva vet vi, Marit Skivenes and Sissel Trygstad, Fafo-notat 2005:29). The study finds that many employees experience misconduct at the workplace, and that such conduct is often reported. Some 71% of respondents claimed to have reported on such misconduct in the course of the previous 12 months (while almost all had experienced what might be labelled 'misconduct'). The main issue arising from such conduct is that a lack of resources (eg insufficient staffing) has a negative impact on users/clients and/or the working environment and employees. There are also those who experience violations of professional ethics and rules, and a minority have experienced mistakes being covered up (or other illegalities).

The proportion of those reporting misconduct who became whistle-blowers - defined as those who direct their grievances to at least two levels, ie taking the case further after the initial report - was one-third. In most cases, reports were made internally within the company. The number of workers who made their reports externally (ie to the media, regulatory authorities or politicians) was low. A majority stated that reporting on misconduct had had positive consequences, for examples in the form of new procedures or work tasks being solved in a different way. However, a minority of respondents - 17% of those who were defined as whistleblowers - had experienced negative reactions. This was particularly the case for those who had taken their cases to bodies outside the company. For some of these, the reported consequences had been serious, in the form of bullying at work or losing their jobs.

The authors of the study call for further research in other sectors, in particular in the private sector. Here mechanisms for whistle-blowing are likely to be different than those in public sector services and in education.

Commentary

Issues related to whistle-blowing in particular, and more generally the freedom of speech of employees, have been on the agenda for some time. Occupations faced with problems of this kind, particularly those in the health and social sector such as nurses, have called for measures to make it easier to report on misconduct. There have also been discussions about the extent to which and in what cases employers may restrict employees’ freedom to report on activities related to the enterprise to the media. The need for clarification was accentuated by the process of altering (and strengthening) the provisions concerning freedom of speech in the Norwegian constitution in 2004. In connection with this work, a need was identified to clarify the rights of employees in this regard, as well as the boundaries within which these rights have effect. Closely connected to the latter issue is recognition that the employer may also have valid justification to protect the enterprise against reports that may impose unnecessary harm on it.

The working group has opted for a rather broad and general regulatory framework. The proposed new rules involve partly enshrining existing legal practice in legislation - including the constitutional rules on freedom of speech. The rules must nevertheless be seen as a clarification of the right to report on matters relating to the activities of the employer. Moreover, it is also stipulated that the employer - where appropriate - is responsible for facilitating whistle-blowing in the company. Employees will also receive greater protection in cases where reporting of misconduct actually takes place. Several employers' organisations have criticised the proposal for introducing a shared burden of proof in cases relating to retaliation, and find it unreasonable that an employer should stand the risk of having to prove that an employee has not been subject to such retaliation. The relevant organisations and institutions are now considering the proposal.

It is evident, however, that the issue of whistle-blowing and reporting of misconduct is not just a matter of law. Thus, one must assume that matters relating to what encourages or inhibits employees to report on misconduct in their employment relationship will also be subject to significant attention in the future. (Kristine Nergaard, FAFO Institute for Applied Social Science)