Norway: New Supreme Court Ruling Regarding Whistleblowing in the Workplace
The Norwegian Supreme Court recently issued a ruling (in case HR-2023-2430-A) that will have significant implications for whistleblowing in the workplace.
The case involved a shop steward who assisted a work colleague in a meeting with, among others, an HR manager, where the colleague was given a written warning. The reason for the warning was that the colleague allegedly had referred to his immediate manager as an “idiot.” The colleague disputed the warning. On the following day, the shop steward sent an email to a manager in the company wherein he criticized the HR manager’s behavior in the meeting. The basis for the written warning was, according to the manager, that the shop steward had violated the requirement for considerate conduct according to labour regulations. The shop steward was later relocated. In a subsequent court case concerning the validity of the relocation, compensatory damages were also claimed under Section 2 A-5 of the Working Environment Act (“WEA”) for retaliation after whistleblowing. The compensation claim was limited to the question of whether this email to the management was considered as whistleblowing under Section 2 A-1 and Section 2 A-2 of the WEA.
The Supreme Court’s majority concluded that the email met the requirements for whistleblowing. It was considered decisive if there were reasonable grounds for the employer to perceive the email as reporting issues of concern in the company. The email expressed more than just the shop steward’s disagreement with the company’s warning to the colleague. It referred to behaviour contrary to the company’s work regulations on considerate and correct conduct, and therefore, described an issue of concern in the company. The Court of Appeal’s judgement, which concluded that the email was not to be considered as whistleblowing, was set aside.
In this judgement, the Supreme Court gives the concept of whistleblowing, according to Section 2 A-5 of the WEA, a wide application. The ruling presents a challenge for employers to distinguish between general criticism and whistleblowing. The judgement, therefore, emphasizes that employers must make thorough assessments when they receive critical statements from employees, regardless of the form in which the statement is made. This may particularly cause doubt in cases where it is not explicitly stated that the statement is intended to be regarded as whistleblowing.
