The Supreme Court clarifies what constitutes a whistleblowing report pursuant to the working environment act

The case concerns an employee representative who assisted a colleague who had received a warning in a meeting with the management. The employee representative sent an email to the HR manager in the company, claiming that the management had harassed the colleague, acted arrogant and disrespectful and not allowed the colleague to defend himself. The email had an oral and aggressive tone. The company gave the employee representative a written warning based on the email. Later, the company relocated the employee representative due to different reasons. The employee representative issued legal proceedings, claiming that the relocation was invalid. He first presented the argument that the email was a whistleblowing report and that he was protected from retaliation in relation to the preparations of the case for the District Court. Hence, the employee representative argued that the relocation was a retaliation and therefore invalid. The rules in the Working Environment Act (the "WEA") on whistleblowing applies in the event a report concerns "censurable conditions" in a company. The question for the Supreme Court was whether the employee's email was a report concerning censurable conditions in the company pursuant to the WEA.

The majority of the judges in the Supreme Court (four out of five) concluded that the email was a report concerning "censurable conditions". They emphasized that whistleblowing does not involve anything else other than an employee speaking up. There are no requirements as to how a report must be presented, e.g. it can both be made orally or in writing, and it is not necessary that the employee labels it as a whistleblowing report. The only requirement is that the employee reports, speaks up, to one of the representatives they can report to pursuant to the WEA Section 2 A-2, typically a representative of the employer.

When it comes to the term "censurable conditions", the Supreme Court stated that it shall be interpreted broadly. It covers any alleged breaches of law, internal ethical guidelines or ethical norms with broad adherence in the society. It is not a requirement that the concern the employee reports about is of public interest. Further, there is not a requirement that an employee who reports about censurable conditions in the company must be able to prove that the allegations are true. Consequently, it is sufficient that a statement involves a suspicion or concern. The validity of the report must be assessed in more detail according to the investigations the employer must do in line with the duty of activity. The Supreme Court also states that there are no additional requirements when assessing whether an employee representative has reported about censurable conditions in the company, compared to other employees.

The Supreme Court says that it must be made a specific assessment of whether a statement constitutes a report concerning "censurable conditions" pursuant to the WEA. The decisive factor is whether the employer has reasonable grounds to perceive the statement as a report, i.e. that the employee speaks up about censurable conditions in the company. This does not entail an obligation for employees to express themselves clearly. However, the Supreme Court pointed out that any unclarities may, in light of the purpose of the rules on whistleblowing, involve a duty for the employer to contact the employee to clarify how a statement shall be understood.

The rules on whistleblowing in the WEA do not apply to general dissatisfaction or criticism that does not relate to breaches of law, internal ethical guidelines or ethical norms with broad adherence in the society. In this case, the email included allegations of breach of the company's guidelines on ethical behavior.

One judge was of a dissenting opinion. She emphasized that the distinction between general criticism and whistleblowing is being blurred, and that this was not the intent of the legislator. Furthermore, the dissenting judge emphasized that the cooperation and communication between a company and employee representatives are key. Such communication happens often and on a normal basis, while whistleblowing reports are of a more extraordinary character.

Companies need to be aware that the threshold for what is considered to fall within the whistleblowing regulations is low.

It is important to note that expressions of dissatisfaction or criticism (still) fall outside of rules on whistleblowing. The decisive factor when assessing whether the report concerns "censurable conditions", e.g. if the allegations relate to breach of law, internal ethical guidelines or ethical norms with broad adherence in the society.

In the event of a report concerning "censurable conditions", the employer must conduct a satisfactory investigation within reasonable time, cf. the WEA Section 2 A-3. What constitutes a "satisfactory investigation" depends on the nature of the alleged "censurable conditions", which needs to be investigated on a case-by-case basis.

In light of the low threshold for what is considered a whistleblowing report, one concern is that sensitive personnel matters that the employer could solve on a low and discrete level now will be handled on a higher lever in accordance with the whistleblowing regulations. The people involved in such matters will often prefer efficient handling that does not include more people than necessary. Companies must ensure good whistleblowing procedures that take these concerns into account.

In this regard, it is important to be aware that the employer's obligation to conduct investigations is relative and must be assessed in light of to the specific report. This means that reports of a less serious nature still can be handled at a lower level. This obligation should be taken into account when reviewing the company's whistleblowing routines and when handling specific matters. The company should also increase awareness among management and employees and ensure they are familiar with the whistleblowing routines.

Schjødt's Employment & Pension and Corporate Compliance & Crisis Management teams collaborate closely and have extensive experience with whistleblowing. The teams seamlessly assist our clients with e.g. the establishment of robust whistleblowing systems, administering an external whistleblowing channel for companies, conducting or advising on investigations on allegations reported by a whistleblower. the investigation of reported concerns.