Changes in the Working Environment Act’s regulations concerning whistleblowing
The legislative changes also involve some material changes and a strengthened protection for the whistleblower that one must be aware of. We will take you through a brief overview of the changes.
1. The Working Environment Act’s statutory objective is expanded
The Working Environment Act’s statutory objective is expanded to include facilitation of a good free speech climate in the undertaking.
2. The personnel sphere covered by the whistleblowing regulations is expanded
Pursuant to section 1-6 of the Working Environment Act, a number of individuals who are not initially covered by the Working Environment Act shall still be regarded as employees in terms of the regulations pertaining to health, safety and the environment when they perform work in undertakings covered by the Act. The groups of people listed in the Working Environment Act Section 1-6 will now also be covered by the notification rules when they are performing work.
These include students, conscripts, persons obligated to perform compulsory civilian national service or civil defence service, prisoners, patients, persons in employment-oriented schemes placed in undertakings and persons participating in labour market initiatives.
3. The term «censurable conditions» is more clearly defined
The notification rules currently stipulate that workers have the right to provide notification of «censurable conditions» in the undertaking. What can be deemed «censurable conditions» is not defined or described more specifically in the current law, and interpretation has entailed a certain amount of doubt.
There is now a list of examples of what are considered «censurable conditions» in the new Section 2 A-1 second paragraph. Examples mentioned are risk to life or health, risk to climate or the environment, corruption or other economic crime, governmental abuse, improper working environment, or breach of personal data security. This list, however, is not intended to be exhaustive.
The law will now clearly delimit the notification rules from applying to the «employee’s own working conditions». Such notification will not be considered whistleblowing, unless the notification otherwise includes «censurable wrongdoing» as now exemplified in Section 2 A-1 second paragraph.
4. The requirement to the employee’s procedure in notification is changed
The Working Environment Act currently imposes the requirement that the employee’s procedure for notifying must be «warrantable». The requirement of «warrantable» notification has been removed. The Storting believes that the term has been too discretionary and has given grounds for hesitancy and difficult assessments for workers considering whether to avail themselves of their right to notify.
The law now determines that an employee can always notify internally to supervisory authorities and other public authorities.
However, the employee may notify externally to the media or the public in general only if certain conditions are met. The employee must be in sincere good faith regarding the content of the notification. The notification must apply to censurable conditions of a general interest, and the employee must first have notified internally, or have reason to believe that internal notification would serve no purpose.
5. The employer’s obligation to act and follow up is stipulated by law
The Working Environment Act does not currently have explicit rules that stipulate requirements for the employer’s follow-up of a notification. Effective 1 January 2020, employers will have a duty to ensure that the notification is adequately examined «within reasonable time”. However, there is no requirement as to what the employer must specifically do; this is still left to the employer’s discretion in each particular situation.
The employer must also ensure that the whistleblower has a fully safe and secure working environment. If deemed necessary, the employer shall also provide measures that are suitable to prevent retaliation.
6. The prohibition of retaliation is defined in the law
Retaliation against an employee who notifies is forbidden. The content of the prohibition against retaliation is now made more understandable to the users of the law, and the text of the Act now includes examples of what may be regarded as retaliation. Explicit examples of retaliation now include threats, harassment, undue differential treatment, social exclusion or other improper conduct, warning notices, change in work tasks, relocation or demotion, suspension, wrongful termination, dismissal or disciplinary action.
7. Rules regarding liability in conjunction with retaliation are changed
Currently, a worker who has been subjected to retaliation may claim non-economic damages on objective grounds, i.e. without regard to culpability on the part of the employer. This provision of the current law continues in force.
When it comes to compensation for employees’ financial losses, claims can currently be made pursuant to provisions of regular tort law. This involves a claim of culpability on the part of the employer, as well as causation between the financial loss and the retaliation. This is changed, and as of 1 January 2020, a worker who has been subjected to retaliation may claim compensation for financial damage on objective grounds, i.e. without regard to culpability on the part of the employer.
8. Changed requirements to notification procedures
If conditions in the undertaking so indicate, the employer is currently obliged to develop routine procedures for internal notification. Undertakings with at least five employees are always obliged to develop internal notification procedures.
As of 1 January 2020, the undertaking’s notification procedures must contain requirements for the handling and processing of received notifications. The introductory provisions state that the routine procedures should contain specific requirements pertaining to case processing deadlines, deadlines for the implementation of any measures, including feedback to the whistleblower.