The Swedish rules on whistleblowing - is your business up to date?

The Act provides protection for, inter alia, employees who report misconduct at their workplace through a prohibition against retaliation. To receive such protection, the individual should have had reasonable grounds to believe that the information in the report was true. The prohibition against retaliation protects both individuals reporting irregularities and persons assisting such individuals. An employer's retaliation against an employee could result in aliability to pay general damages. 

The Act covers internal reports within the organisation, external reports to authorities, and, under some circumstances, public disclosures. A crucial aspect of the Act is the burden of proof: if an employee provides circumstances that give reason to believe that they have faced retaliation after reporting irregularities, the employer must prove that their actions were not related to the reporting. Furthermore, the Act requires employers with a minimum of 50 employees to establish secure channels for reporting irregularities.

In a recent court case, Uppsala District Court (the "District Court") ruled on a claim for damages made by an employee against her employer related to alleged retaliation. The employee claimed that she had faced retaliation – being placed on garden leave and subsequently relocated – after reporting workplace misconduct. 

The District Court's ruling included two main questions: (i) whether the Act was applicable in relation to actions taken after the Act entered into force, in relation to reports made before that date, and (ii) whether the employee's reports were of public interest, which is a requirement for protection under the Act. The District Court concluded that the Act applies to retaliatory actions occurring after its enforcement, although the reports were made earlier. The employer argued that the alleged retaliation was a legitimate management decision due to a workplace conflict between the employee and a colleague. This was supported by witness testimonies, and the timing between the reports and the employer's actions suggested that the decisions were related to the employee's conflict with the colleague rather than the reporting. The District Court concluded that no retaliation, as defined by the Act, had occurred. Hence, the employee was not entitled to damages.

The employee has appealed the District Court's ruling to the Labour Court (Sw. Arbetsdomstolen), which has granted leave to appeal. However, a final judgement has not yet been delivered, leaving the District Court's initial judgement in a state of uncertainty.

The Act may pose challenges for employers. It is important for businesses to understand their obligations under the Act and to implement effective compliance measures to protect themselves from legal risks. Schjødt offers a wide range of services to assist employers in navigating these obligations:

• Policy preparations, implementation and compliance: We help employers prepare whistleblowing policies and procedures that comply with the legal standards under the Act. We also assist in identifying potential legal risks with the current procedures and recommend measures to align with the legal requirements.
• Legal support and investigations: In whistleblowing matters, we offer legal support with conducting internal investigations including recommended actions. In cases of alleged retaliation, we offer expert legal support to defend against claims and represent clients in court.
• Lectures: We provide lectures for both management and staff on the Swedish rules on whistleblowing to promote compliance and transparency.

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For legal advice regarding the Swedish rules on whistleblowing, please reach out to our employment law team at Schjødt's Stockholm office.