Notification rules changing

When this is written in February 2024, the Ministry of Justice is implementing the directive on the protection of persons who report breaches of EU legislation. In December 2023, the Supreme Court issued a judgment dealing with the concept of notification. Both parts are of great importance to employers and to whistleblowers. 

The background for the current rules on notification in the Working Environment Act

The legal provisions on notification of "reprehensible conditions" are laid down in the Working Environment Act, Chapter 2 A. For those who know the history behind the introduction of the provisions on notification, there were two key cases in particular that set the pace for the debate at the start of the 2000s. Both the case of Per Yngvar Monsen, who reported on conditions he discovered during his employment at Siemens in Norway, and Kari Breirem's case in her employment at the law firm BAHR, filmed in the TV-2 series "Witch Hunt", created attention to whistleblower protection. 

Several large international whistle-blowing cases also created a gradually increasing understanding of the challenges whistle-blowers faced when they reported on objectionable matters. Cases such as Enron (Sherron Watkins), Worldcom (Cynthia Cooper), Philip Morris (Pascal Diethelm/Jean-Charles Rielle) were clear examples at the time of the importance of whistleblowers in revealing criminal and reprehensible circumstances.

After several changes in the law, most recently with the background of the whistleblowing committee's investigation (NOU 2018:6), we have received the current regulations which, among other things, are described by the Norwegian Labor Inspection Authority on their website: https://www.arbeidstilsynet.no/tema/varsling/

The Supreme Court has determined what is considered notification

There has previously been some uncertainty about what is to be considered a notification. The regulations are clear that not every critical statement from an employee is to be considered a warning. For example, statements about one's own working relationship - such as dissatisfaction with pay, working conditions and workload - basically fall outside the reporting institute's scope of application. An issue that arises is whether there are any form requirements for a notice.

As an extension of this problem, the question has been raised as to whether notifications must follow the employer's routines for choosing a procedure - i.e. the company's own notification routine. It has also been uncertain whether it is required that the whistleblower must be clear to his employer that the statement is to be perceived precisely as a warning.

The Supreme Court handed down a judgment (HR-2023-2430-A) in December 2023 which contributes to judicial clarification in this area. The judgment deals with a situation where a shop steward at a slaughterhouse sent an e-mail to the company's HR manager. In the e-mail, the shop steward refers to a manager at the slaughterhouse as, among other things, arrogant, rude and disrespectful. Prior to this email, the shop steward had assisted a colleague who had received a verbal warning from the criticized manager. The HR manager in the company believed that the shop steward had breached the requirement for considerate behavior and gave the shop steward a written warning as a result of the e-mail. Eventually, the shop steward was also reassigned to another department in the company. The shop steward sued the company claiming that the relocation was invalid and demanded compensation for illegal retaliation after notification.  

It appears from the judgment that the regulations do not require the form of the notice. It can therefore be notified both in writing and orally and in any context. This also includes statements that are part of general internal communication in the business. The only requirement is that the notice be submitted to one of the actors appearing in the Working Environment Act § 2 A-2, who will typically be a representative of the employer.

The judgment also shows that the business cannot demand that a notice be delivered through the business's dedicated notification channel, or in line with the business's notification routines. Other statements from employees (including the union election) may also have to be perceived as a warning after a closer assessment of the content of the statement. Regarding this, the Supreme Court writes the following in the judgment:

It follows from this that there must be a closer interpretation of the statement made by the employee, in order to determine whether it signals objectionable conditions in the business. Then not only the employee's choice of words, but also the context in which the statement is made, and the knowledge the parties have of each other, could be important.

The decisive factor must be whether there is a reasonable reason for the employer to perceive the statement as warning - speaking out - about objectionable conditions in the business. There is no requirement in this that the employee must express himself completely clearly. In the event of ambiguity, the purpose of the notification rules - which is to contribute to a good climate of expression and to uncover possible objectionable conditions in the business - may dictate that the employer contacts the employee to clarify how what has been said is to be understood.

HR-2023-2430-A

The judgment has been handed down under dissent. One of the five judges came to a different result and believed that the shop steward's statement could not be considered a warning. This judge believed that the threshold for what can be considered a warning should be "somewhat higher" than what the other four judges arrived at. The judge who dissented believed that, as a starting point, a different level of clarity must be required regarding the statement whether it is a notice or not where it is made by a union representative compared to cases where the statement comes from an employee.

EU directive on notification

In autumn 2019, the EU (European Parliament and the Council of the European Union) adopted a directive on the protection of persons who report breaches of EU legislation. At the time of writing, the Ministry of Justice and Emergency Preparedness is considering how the EU notification directive should possibly be implemented in Norwegian law. What ultimately results can have major consequences both for employers, whistleblowers and the person who is notified (re-notified).

The content of the directive

The purpose of the directive is to lay down minimum standards that ensure a satisfactory level of protection for whistleblowers across national borders in the EU. The directive applies to persons who report breaches of EU legislation within specific listed areas, including public procurement, financial services, measures against money laundering and terrorist financing, product safety, transport safety, protection of the environment, nuclear safety, food safety, health, consumer protection and breaches of the Personal Data Act (GDPR ).

Notification of breaches of the rules of the Working Environment Act, HSE requirements and employee rights - which have traditionally formed the core of the Norwegian notification rules - are not, however, covered by the directive. The directive is nevertheless a so-called "minimum directive", which means that the Norwegian authorities can have rules on whistleblower protection in areas other than those listed in the directive. Furthermore, the Norwegian authorities can decide that the so-called "whistleblower protection" should provide better protection than the minimum standard set out in the directive.

The circle of people

The EU directive expands the circle of people who report in a work-related context. In line with the current regulations, the directive covers employees in the private and public sector, including hired labour. The directive covers both people who are in employment processes and former employees. Furthermore, shareholders, suppliers and others who carry out work under the supervision of the business will be covered by the regulations.

The new EU directive, on the other hand, does not deal with conditions outside an employment relationship, including "warnings" about objectionable conditions from consumers, business customers or other parties to whom the company has no employment law obligations. Furthermore, there are people with central roles who are not given protection under the directive - such as elected people in municipal councils, county councils or the Storting.

The rights of those notified

The whistleblowing rules in the Working Environment Act, Chapter 2 A, give the whistleblower protection against retaliation. Retaliation in this context includes – in short – any unfavorable action, practice or omission as a reaction to the employee's notification. Beyond the general rules on a safe working environment, the Working Environment Act does not contain rules on how the person who has been notified (re-notified) must be looked after by the employer. 

New in the EU notification directive is that this should also ensure certain rights for those who have been notified and other affected third parties. This includes, among other things, the right to effective legal remedies, protection in line with the presumption of innocence, the right to a fair trial (the right to be heard and access to documents), as well as confidentiality regarding the identity of those involved. It remains to be seen how these considerations will be taken care of in Norwegian law.

Is there a need for a new independent notification act? 

The new EU directive raises the question of whether a separate act on notification should be drawn up. In that case, the consequence will be that the current notification rules in the Working Environment Act will be replaced by a new independent law. There are different views on this among lawyers and professionals. A group of lawyers welcomes a separate notification law, but believes that the content of the term "reprehensible conditions" must be redefined. The purpose is that fewer working environment and personnel cases end up in the notification track, rather than being treated as ordinary cases under the Working Environment Act. Another group of lawyers wants the current rules on notification in the Working Environment Act chapter 2 A to be retained.