Whistleblowing – the prohibition against retaliation

The protection against retaliation shall ensure that employees can report any incidents that may be in breach of law, the company's ethical internal guidelines or other ethical norms with broad adherence in society, without being worried of any retaliation. Employees may express any suspicion or concern, as there is no requirement that they can prove their allegations. Without such protection, companies may not become aware of serious breaches of law, such as corruption, economic crime or sexual harassment. 

The NWEA prohibits any retaliation against an employee who has sent a whistleblowing report pursuant to the NWEA. Any unfavourable act, practice or omission which is a consequence of or a reaction to a whistleblowing report, is considered as retaliation pursuant to the NWEA. What constitutes a retaliation shall be interpreted broadly. If an employee provides information that give reason to believe that retaliation has taken place, the employer must substantiate that no such retaliation has taken place. 

The Court of Appeal delivered a judgement earlier this year, where the question was whether an employee, who was also an employee representative, had been subjected to retaliation. The employee alleged that he had been subject to several acts of retaliation following a whistleblowing report: a written warning, a statement from the company that they would not treat the employee as an employee representative, and a relocation of the employee. 

The Court of Appeal confirmed that the actions by their nature were adverse and may constitute retaliation. The determining factor was whether the requirement for a causal connection between the whistleblowing report and the action was met. 

The employer argued unlawful retaliation requires that the whistleblowing report is a necessary condition for the alleged retaliation. The employee argued that it must be considered an unlawful retaliation if the employer had put emphasise on the whistleblowing report in their assessment, even if it was not necessary for the action. The Court of Appeal concludes that the requirement of a causal connection involves that the whistleblowing report must be a necessary condition for the adverse action. 

For the specific assessment of the alleged acts of retaliation, the Court of Appeal concludes that the notification was a necessary condition for the warning and the statement. The fact that the employer was in good faith and mistakenly not aware that the email constituted a whistleblowing report, and thus did not mean to retaliate the employee did not affect the assessment. Retaliation does not require that the employer can be blamed. However, the relocation of the employee was based on a broader assessment, and it was therefore concluded that the whistleblowing report was not a necessary condition.

The employee appealed the judgement to the Supreme Court, but the Supreme Court did not agree to hear the appeal. Thus, the judgement from the Court of Appeal is legally binding. 

We experience that more employees claim that they have been subject to retaliation. A key takeaway is that all employers must ensure to properly document the basis for their assessments if any unfavourable actions directed at an employee, to prove that e.g. a written warning is based on the employee's behaviour. 

We are also awaiting the assessment on whether the EU Directive on the protection of persons reporting on breaches of Union law (EU 2019/1937) is EEA relevant, and if so, how it will be implemented in Norway, which is currently being assessed. On a general note, the protection of retaliation is broader defined in the directive, as also people with close connection to the whistleblower may be covered. E.g. colleagues or relatives of the whistleblower may be granted protection in a work-related context, as well as legal entities that the whistleblower owns, works for or is otherwise connected to.