The Norwegian rules on whistleblowing - the employer's duty to investigate whistleblowing reports

Under the Working Environment Act, employees have the right to report circumstances they consider to be in violation of law, internal regulations or ethical norms, and the act protects employees who have made a report against any retaliation. The rules in the Working Environment Act on whistleblowing are crucial to uncover censurable conditions, such as corruption or economic crime, harassment or breaches of regulations on personal data in the company. Moreover, it is important to maintain transparency and integrity within the company, by ensuring that employees can report any censurable conditions without being afraid of retaliation.

The Supreme Court's decision in HR-2023-2430-A clarified the legal definition of the term "whistleblowing report" (Nw: "varsel") in the Working Environment Act, which is decisive for the scope of the rules on whistleblowing becoming applicable, including the employer's duty to investigate and the prohibition against retaliation. The Supreme Court concluded that an email from an employee constituted a whistleblowing report as it addressed behavior that could violate the company's internal guidelines. The Supreme Court stated that the decisive factor is whether the employer has reasonable grounds to perceive the statement as a whistleblowing report, i.e. that the employee speaks up about censurable conditions in the company. We have further described the judgement in a separate article which can be read here.

Further, whistleblowing cases in the media the past months have highlighted the need for employers to diligently investigate whistleblowing reports of censurable conditions in the company. It also illustrates the challenging aspects of being a whistleblower and the need for companies to have robust mechanisms in place to protect whistleblowers and ensuring that their concerns are appropriately addressed. It has also led to a broader discussion on the effectiveness of the current legal framework.

Poor handling of whistleblowing reports can affect the company in various aspects, including leading to:

• a lack of trust among employees ofthe company if whistleblowing reports are not taken seriously, or if employees experience retaliation;
• employees not reporting their concerns, and consequently censurable conditions not being brought to the company's attention;
• negative publicity in the media; and

• reactions from customers, suppliers, collaborators and other stakeholders.

At the same time, the Working Environment Act gives limited guidance on the scope of the employer's duty to investigate whistleblowing reports. It is stated that the employer must ensure that a notification is adequately investigated within a reasonable time, without setting out any further requirements, time limits or examples. It does not impose an obligation to conduct more thorough investigations than what the report objectively gives grounds for. A specific assessment must thus be made based on the whistleblowing report in question, where amongst other things the severity and the nature of the report is relevant.

We have extensive experience with and regularly assist our clients with how to handle whistleblowing reports and other aspects of the whistleblowing regulations such as:

• Advicsing whether the whistleblowing rules are applicable, and the extent of the employer's responsibilities.
• Reviewing internal whistleblowing routines.
• Advising on the establishment or enhancement of a whistleblowing system.
• Administering an external whistleblower channel for your company, ensuring an independent and impartial handling of reported concerns.
• Conducting or advising on investigations of allegations reported by a whistleblower, whether in close cooperation with internal resources or independently.
• Advising on relevant measures to implement following an investigation.

• Providing targeted compliance training, from basic training on ethical conduct and speaking up to in-depth training on investigations.

We have experienced an increase in the number of assignments concerning whistleblowing and will arrange a workshop in Stavanger following the summer holiday to address the subject. We will address the latest case law and practical experience related to this topic. Stay tuned for an invitation.