Swedish court case regarding an alleged retaliation against a whistleblower

by Jacob Nittmar and Sandra Nilsson


Silhouette of a man waiting for subway

On 15 November 2023, Uppsala District Court ruled in the first judgement (court case no. T 7652-22) regarding retaliation against a whistleblower under the new Swedish Act on the Protection of Persons Reporting Irregularities (Sw. lag (2021:890) om skydd för personer som rapporterar om missförhållanden) (the "Act"). An employee had made repeated reports regarding, inter alia, the malpractice of one of her colleagues. After being put on garden leave and subsequently being relocated, the employee claimed damages due to the employer's alleged acts of retaliation towards her.

In 2020 and 2021, the employee, who claimed to be a whistleblower, had made 71 different reports, of which 20 concerned a colleague of hers. The colleague was an anaesthetist, and the majority of the reports concerned his alleged malpractice. On 27 January 2022, the whistleblower was put on garden leave and, subsequently, relocated to a different position at the employer.

The Act entered into force on 17 December 2021. Although many of the reports at hand were made prior to the legislation entering into force, the alleged retaliation occurred thereafter. Therefore, the Court found that the Act was applicable in principle. The Act applies to reports deemed to be of public interest. Out of the 71 reports made by the whistleblower, only two were deemed to be of public interest and thereby encompassed by the Act.

The employer argued that the alleged retaliation was a decision within the employer's right to manage the work, and that it was made in connection with a disagreement between the whistleblower and the colleague. Witness reports supported the employer, and the time lapsed between the two reports and the employer's alleged retaliation actions also supported that the employer's decisions were not made as a consequence of the whistleblower reporting, but rather being connected to the disagreement between the whistleblower and the colleague. The Court concluded that no retaliation, in accordance with the Act, had occurred.

The case has been appealed to the Labour Court (Sw. Arbetsdomstolen). If the Labour Court grants leave to the appeal, the court case will be interesting in that sense that the Labour Court's ruling in this case will be its first guiding precedent concerning the Act. The questions in the case will hopefully receive clarifications, including the questions on causality in acts of retaliation, burden of proof, and the public interest criteria of reports.

Do you have any questions?