Sweden: The Swedish Labour Court Issues First Ruling Under the New Whistleblowing Act

Author: Karolina Sundqvist

The new Swedish Whistleblowing Act entered into force in December 2021, implementing the EU Whistleblowing Directive into Swedish law and replacing a previous Swedish act on whistleblowing from 2016. The objective of the new Act is to protect employees and other whistleblowers from retaliation when reporting irregularities and to impose an obligation for employers with 50 or more employees to implement and document internal procedures and routines for reporting irregularities.

In June, a first a ruling was issued by the Labour Court concerning the new Whistleblowing Act. The case concerned a surgeon, employed at a private specialist clinic in plastic surgery, who reported irregularities within the business. The irregularities were primarily related to the practices of an anaesthetist working at the clinic. The surgeon claimed she had been subjected to reprisals as a result of her reporting. The surgeon reported the irregularities in 2020 and 2021, before the new Whistleblowing Act came into effect. When considering the question which act to apply, i.e. the new or the old Whistleblowing Act, the Court referred to the preparatory works of the new Act and concluded that the new Act is applicable as the alleged reprisals took place after it entered into force.

The second question was whether the reported irregularities were considered irregularities in accordance with the definition in the new Act. The new Act requires irregularities to be of a public interest to be covered, and the Court noted that irregularities are normally not of a public interest if they are not considered as serious. Further, the Court emphasised that the new Act generally does not cover personal conflicts, as those are normally not of a public interest. Additionally, the public must have a legitimate interest in the irregularities, which is usually the case when the irregularities affect the public negatively. The Court concluded that it is the reporting person who must demonstrate that the irregularities are covered by the new Act.

The Court found that the reporting person had failed to prove that the irregularities were of public interest and that the reporting may have been due to personal conflicts at the workplace. As a result, the reporting of the irregularities and the alleged reprisals were not covered by the Act.

Key Action Points for Human Resources and In-House Counsel

Irregularities must be of a public interest to be covered by the new Swedish Whistleblowing Act, meaning that the irregularities generally must be serious and that the public must have a legitimate interest in them.