Do you intend to report objectionable conditions in the workplace?
In the workplace, incidents may occur that make you want to report objectionable or other serious conditions. You should be aware of some of the challenges you may face as a whistleblower before you choose to speak up. Here you will find some tips on what you should have thought through before reporting. Once you notify, it may be too late. If you are an employer, you should read this to increase your insight into what whistleblowers may have reason to fear. The Working Environment Act's changes to the rules on notification apply from 1 January 2020 and give the employer new obligations.
What is notification?
Sexual harassment, discrimination or bullying are just some of the reporting cases that have been exposed in the media after #Metoo the campaign.
In employment, there are rules for notification. The employer is obliged to draw up whistle-blowing guidelines and must protect employees who whistle-blowers. The routines must be in writing and contain at least:
- call to report objectionable conditions,
- notification procedure,
- procedure for receiving, processing and following up notifications.
Here you can read more about the regulations for notification in employment.
One of the new things in the Working Environment Act's rules on notification is the employer's duty to ensure that the notification is investigated within a reasonable time (section 2 A-3 of the Working Environment Act). Be aware of notices that only apply to your own employment relationship, not immediately considered a notice. In order for your notice to be dealt with by the employer, the notice must apply to matters worthy of criticism. Examples of what are objectionable conditions are conditions that may involve danger to life and health, the climate or the environment. Abuse of authority or an indefensible working environment are also considered objectionable conditions. The same applies to suspicion of financial crime, including corruption. Breach of personal data security is also mentioned as an example of objectionable matters which the employer is obliged to investigate.
A good and safe follow-up of the whistle-blowing case requires the employer to have expertise, resources and routines for how different types of whistle-blowing cases should be handled. It is not certain that the employer has the skills, resources or tools to carry out the tasks you expect in your notification case. Not all employers have thought through or prepared for what investigations they should do or how to secure relevant information before it is too late.
Duty to notify
Employers with more than 5 employees are obliged to establish routines for notification and to facilitate notification. As an employee, you have a duty to notify or report in certain situations. Employees have a duty of loyalty and a duty to cooperate when it comes to health, environmental and safety work. As an employee, you are expected to report breaches of the requirements for the physical and psychological working environment. Please note that the employer has a duty to notify and report after § 5-2 of the Working Environment Act.
All citizens have a duty to prevent certain criminal acts (see Section 196 of the Criminal Code). The duty to prevent criminal offenses applies regardless of confidentiality.
Why do people choose to report?
Most whistleblowers have a strong conviction that speaking up is the only thing that is useful in revealing something that is highly objectionable and that no one else wants to report on. They have discovered something or come into a situation where their own conscience makes it impossible to continue as before, or to pretend that nothing has happened. Notification can be exactly what is needed to make "trolls burst" or to highlight something that many people know, but which no one dares to address. Precisely this means that notifications choose to give notice where others continue as before.
The reason why someone chooses to report is complex and completely dependent on the situation. The motivation to report depends on what it is that the whistleblower has discovered or revealed. It can also be important what documentation or information from others the whistleblowers have access to. It probably also matters which situation the alert is in.
Notification of objectionable circumstances is often about the courage to speak out about unpleasantness where most people choose to look the other way. Therefore, the whistleblower often finds himself alone, without support from others who know what is going on, but who do not dare to speak up. The isolation that the whistleblower can experience is perhaps one of the things that surprises whistleblowers the most. The use of various control techniques to neutralize whistleblowers or invisible sanctions against the whistleblower can be difficult for anyone.
Many perceive whistleblowers as the heroes of our time. There is little doubt that it takes something completely extraordinary to dare to speak out about seriously objectionable circumstances. Kommunal Rapport named a whistleblower as "Bravest of the Year - 2017". Take the time to hear what Ragnar Holvik said when he received the award in December 2017. It says a lot about what you should think through before reporting objectionable conditions in the workplace. In other blog posts on www.governance.no, you can read about how whistleblowers contribute to exposing serious economic crime and what financial reward they obtain in the USA for their contribution to uncovering serious conditions in their own workplace.
What does the notice apply to?
Reporting may, among other things, concern sexual harassment or other forms of harassment, discrimination, bullying, racism, objectionable discrimination, breach of internal rules or guidelines, abuse of power, abuse of position or position, financial crime (including embezzlement, accounting offences, money laundering, tax evasion or workplace crime), breach of health, environment and safety requirements or various forms of other offenses and objectionable conditions.
Who should you notify?
As a notifier, you choose how to notify and to whom. Which method you choose probably depends on what the notice is about.
If the notification applies to conditions at the workplace, you should primarily choose the procedure for notification that follows from the routines at your workplace. Notification in accordance with the routines at the workplace is always considered proper notification and ensures that the employer cannot define you out of the role of "whistleblower". Whistleblowing in accordance with workplace whistleblowing procedures also protects you from retaliation or retaliation.
In some cases, for example where you do not have confidence that the employer can handle the notification case properly, you can choose other methods for notification. Depending on what the notice applies to, you can notify the Norwegian Labor and Welfare Authority, NAV, the Tax Authorities, other control authorities or the police. If you are the victim of a criminal offence, you should consider reporting the matter to the police. Be aware that the person you report can request access to the case and thus gain access to your notice and all other information you have provided in the case.
You can also choose to notify others whom you trust and who are able to do something about the relationship or contribute to resolving the issues the case concerns. The person or people who can do something are usually someone who has the skills and resources to handle the matter in a good way.
What is your motivation for speaking up?
In many situations, whistleblowers are convinced that they have no choice but to speak up. The thought that others may experience the same as themselves is unbearable. If you are convinced that what you know is unacceptable, unethical, unfair, offensive or contrary to important societal interests, the burden of keeping the secret can be significantly greater than speaking up.
Anonymous notification
To protect yourself, you can choose to report anonymously. In reality, anonymous notification does not provide any protection if it is easy for the recipient to identify you. In many workplaces, anonymous reporting is therefore not a real option. If you choose to notify anonymously, you must be aware that it is not normally possible for the recipient to obtain additional information from you. This can, for example, be solved by the employer using an external whistle-blowing service which has a duty of confidentiality regarding your identity as whistle-blower.
There are several examples of cases where anonymous whistleblowing has led to the disclosure of serious or highly objectionable conditions, without the anonymous whistleblower being "revealed".
When should you notify?
There may be good reasons not to notify immediately. In some cases, the objectionable relationship may go away on its own, for example because the person to whom the notice is directed ends his employment. In other cases, it must be notified immediately to prevent damage or new objectionable conditions from occurring. If you are exposed to something that you believe is illegal or completely unacceptable, you probably have no choice but to report it immediately.
Are there other ways to raise the issue?
Before giving notice, you should think through whether there are other ways to raise the matter in the business. Can the matter be dealt with by the human resources manager, AMU meeting, management meetings through safety representatives, the shop stewards' apparatus or in a trade union context?
There may also be an opportunity to speak up during a meeting in the business where it is natural to bring up what you would otherwise have intended to notify about. If you raise a question about a reprehensible relationship where several people are present, it can provide some protection and ensure that you gain attention about the reprehensible relationship.
Are you able to distinguish between what you know and what you believe?
If you choose to notify, you must try to distinguish between what you know and what you believe. You may be wrong about the facts or misunderstand legal provisions, requirements, rules or guidelines. It may also happen that you draw conclusions on a completely incorrect basis. But there is no requirement that you conduct any form of evidence or be able to present evidence in order to notify. If you assume something or are not sure what is correct, say so. Try to describe as soberly and objectively as possible what you yourself have seen, experienced or revealed. Then it will be easier for the person who receives your notice to distinguish between what you know and what you believe.
Are you prepared for the consequences?
As mentioned, there are several obvious negative consequences for the whistleblower. Although some whistle-blowers may get the impression that it is safe to whistle-blower today after all the discussion about whistle-blowing in public, there is every reason to think through the consequences. From 1 January 2020, the employer has a duty to follow up notifications concerning objectionable conditions. As a whistleblower, you should therefore expect that the employer can carry out the case management and investigation of the whistleblower case in a safe and sound manner, in line with the guidelines that apply in the workplace.
If the notification concerns working conditions, you may risk distrust from managers and work colleagues. There are several reasons for this, but one of the main reasons is that alerts can be perceived as unpredictable and untrustworthy. If the notification concerns conditions that have to do with trust in you as an employee, you may find that you are isolated in the workplace in various ways. There is a risk of hidden and open retaliation against whistleblowers, both from the employer and colleagues. This can result in a change in responsibility, position, function, tasks, weaker career development than expected, or weaker salary development than colleagues at the same level.
Communication with your employer can be more difficult than you first thought. Employers are not always prepared for how fearful whistleblowers can be or what whistleblowers fear. This may be the reason why it is difficult to communicate with the employer and that notifications may be misunderstood.
It is not unnatural that whistleblowers may feel guilty for the unpleasant consequences that the case may entail for employers, colleagues, suppliers, customers or others. That is why it is important to remember that whistleblowers have unintentionally found themselves in a situation where whistleblowers are exposed to something, have experienced something or have gained knowledge of something that the whistleblower themselves did not ask for. The problem is not the whistleblower, but the one or those who have caused the reprehensible relationship or helped to keep the reprehensible relationship hidden.
Do you have an exit strategy?
In the extreme, it may be difficult to continue the employment relationship after a notice has been given. Therefore, you should think through what you will do if the working relationship becomes unsustainable. It may make sense to think about the possibility of applying for another employment relationship. Perhaps there is reason to fear that the employer you have notified will not give you as good references as you might otherwise expect. Therefore, it may make sense to wait to notify until you have secured a new job in certain cases. In many of the cases we are aware of, the whistleblower has been recognized in the workplace as a loyal and good employee. The consequences for you as a whistleblower depend on what is being notified about, how you choose to notify, what will be the result of the notification and how you act after it has been notified.
Have you involved your loved ones?
As a warning in working relationships, it is likely that your choices will have consequences for those closest to you. The notification can also have financial consequences for those closest to you if you are out of a job, have to pay for legal assistance out of your own pocket, or incur other costs in the situation you find yourself in. Consult your loved ones before you choose to notify.
Erling Grimstad has worked with notification cases since 2005 and he has participated in the processing of around one thousand notification cases. If you have questions for us about notification, please contact us by sending the inquiry to hello@governance.no
