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    Notification (whistle-blowing)

    Area of expertise

    The Working Environment Act in Chapter 2A sets out separate rules governing an employee’s right to notify censurable conditions at the employer’s undertaking. This is a situation that occurs quite frequently.

    The provisions of the Working Environment Acta are intended to protect the person notifying, who is often called a whistle-blower. The employer is under an obligation to draw up written routines for notification. Retaliation by the employer against an employee who notifies, whether carried out directly or more indirectly, is forbidden.

    An employee’s right and duty to notify censurable conditions

    An employee has the legal right to notify censurable conditions at his/her employer’s undertaking. The term censurable conditions has wide application, but refers mainly to criminal offences and to breaches of statutory impositions and prohibitions. In addition, breaches of broadly accepted ethical standards may also be considered to be censurable conditions.

    In the same way as permanent employees, temporary employees on hire from work agencies also have a right to notify censurable conditions at the employer’s undertaking. In certain situations, it is in fact the employee’s duty to notify censurable conditions. The employee is under a duty to inform his/her employer and/or the company’s safety delegate of:

    • Discrimination, harassment and hazards that can endanger life and health, cf. Section 2-3 of the Working Environment Act.

    Certain professional groups, health personnel for example, are under a duty to notify in accordance with statutory regulations in the legislation applying specifically to them.

    Safety representatives in particular are bound by a duty to notify conditions that may represent an accident risk or health hazard.

    A duty to notify may also form part of the company’s own notification routines or code of conduct.

    An employer has a duty to prepare notification routines

    All employers with more than five employees must draw up notification routines, cf. Section 2 A-3 of the Working Environment Act. These routines shall be formulated in conjunction with the employees and safety representatives, they must be written, and they must include the following:

    1. a request to notify censurable conditions,
    2. the notification procedure, and
    3. the procedure for receipt, treatment and follow-up of the notification.

    Should the undertaking have introduced a scheme for anonymous notification, the routines shall describe the recommended procedure for such notification.

    The Working Environment Act stipulates that the employee must proceed responsibly when notifying. First and foremost, this means that notification should be conducted in accordance with the employer’s routines for notification.

    Responsible notification entails that the employee, by the manner in which he/she notifies, takes proper consideration of the employer’s interests. This frequently means that the employee to begin with must notify internally before he/she notifies external bodies, such as the media or other public communication channels.

    The employee has nonetheless

    • the right to notify a safety representative, employee representative or the working environment committee (AMU), and he/she has
    • the right to notify the supervisory or public authorities (Norwegian Labour Inspection Authority, Tax Administration, Data Protection Authority, Competition Authority etc).

    Responsible notification also means that there it is prohibited to exercise one’s notification right in order to make unfounded allegations. Notification legislation provides no protection to an employee making such allegations. Yet the requirements set by must not be too stringent, as the whistle-blower must be given the opportunity of notifying a circumstance where he/she believes it is correct to do so, but where it transpires that he/she made a mistake. A notification will lead to the employer investigating the situation and the error will be discovered during such an investigation. It is where the employee consciously makes an erroneous notification that he/she will receive no protection, as he/she is acting against his/her better judgement. The margin of error shall nonetheless be seen in context with the employee’s approach. There are probably stricter requirements to an employee’s duty of care, in terms of how a notification is expressed, when the employee contacts the media.

    If an employer believes that an employee’s notification has not been made responsibly, it is up to the employer to prove this. In fact, it takes a lot for a notification to be deemed irresponsible, as the intention is that an employee shall feel that there are no unhelpful obstructions preventing him/her from notifying.

    Pursuant to Section 2 A-4 of the Working Environment Act, public authorities who receive a notification are obliged to prevent other persons from gaining knowledge of employees’ names or other information identifying the notifier. This duty of confidentiality also applies to an individual carrying out work, or a service, for the body receiving the notification.

    The duty of confidentiality of public authorities also applies to the parties (including the undertaking that the notification concerns) and their representatives. This duty of confidentiality takes precedence over the regulations that govern the right of inspection in relation to public bodies.

    Section 2 A-2 of the Working Environment Act states that retaliation against the notifier is prohibited. This applies directly to retaliation made in the form of a:

    1. Caution
    2. Notice of dismissal
    3. Summary dismissalDet gjelder også alle former for indirekte gjengjeldelse, for eksempel uteblitt lønnspålegg, at arbeidsoppgaver fratas eller overføres andre, ulike former for forskjellsbehandling osv.

    It also applies to all forms of indirect retaliation, for example the withholding of a pay increase; that a notifier’s tasks are taken away from him/her or transferred to another; or various types of differential treatment, etc.

    If information is put forward that gives grounds for believing that retaliation against notification, or against notification preparations, has taken place, the basic reaction shall be that such retaliation has taken place unless the employer or hirer can demonstrate the probability that this is not the case. In other words, the burden of proof is firmly on the employer or hirer. Such rules have been established in order to protect the notifier.

    A whistle-blower suffering retaliation following notification has the right to pursue an action in tort for harm or damage and claim compensation for financial loss. An employer does not need to be at fault in order for an employee to be awarded damages.

    It is the nature and degree of severity of the retaliation that primarily determines the amount of compensation awarded. Factors relevant to the employer, including whether he/she might be reproached, as well as the circumstances of the case, are also of significance. In judicial practice damages of NOK 100 000 and NOK 150 000 have been accepted, though a case must be fairly serious in order for damages of that magnitude to be awarded.

    As far as financial loss is concerned, this is normally equivalent to the pay loss incurred when retaliation takes the form of dismissal. The compensation award will probably be determined in accordance with the guidelines applicable for cases of dismissal, i.e., pursuant to Section 15-12 of the Working Environment Act.

    In practice, we find that a number of notifications occur at times when an employer has raised negative issues with an employee. This may be in connection with the issuing of a caution, or in connection with a case of dismissal, whether summary or otherwise. It is not the case that a notification can prevent the implementation of objectively established cautions, dismissal notices and summary dismissals. Cautions must however be considered objectively so that the actual conditions relevant to the case are revealed.


    Svein Steinfeld Jervell
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    Tonje Liavaag
    Partner

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