Freedom of Expression and Whistleblowing in Employment – Rules, Rights, and Protection under the Norwegian Working Environment Act

Employees' freedom of expression and the right to report critical conditions are fundamental rights in Norwegian working life. The Working Environment Act Chapter 2 A contains detailed rules that protect whistleblowers, and in the purpose clause of the law, it is stated that it shall "facilitate a good climate for expression in the organization." This article provides an overview of the rules on freedom of expression and whistleblowing in employment, focusing on the balance between freedom of expression and the duty of loyalty, the right to whistleblow, the procedure for whistleblowing, and protection against retaliation.

Freedom of Expression in Employment

The Legal Basis for Freedom of Expression

Employees have, in principle, the same freedom of expression as any other citizen. Freedom of expression is protected by Section 100 of the Constitution and international human rights conventions, particularly Article 10 of the European Convention on Human Rights (ECHR). Three considerations are central in the justification for freedom of expression:

1. Search for Truth: Freedom of expression is necessary to promote a rational exchange of opinions where claims can be corrected with counterarguments

2. Individual's Free Formation of Opinions: The freedom to exchange thoughts and opinions is a central part of individual self-determination

3. Democracy: Openness, criticism, and debate are fundamental in a democratic society

These considerations are important in assessing how far freedom of expression extends in specific cases.

The Relationship Between Freedom of Expression and Duty of Loyalty

The unwritten duty of loyalty in employment may justify certain limitations on employees' freedom of expression. The duty of loyalty implies that employees are obliged to take reasonable account of the employer's interests and may, in some cases, suggest refraining from expressions that could harm these interests.

Any interference with freedom of expression, however, requires a special justification. The interference must:

• Have a basis in national law

• Pursue a legitimate aim

• Be necessary in a democratic society (proportionate)

When weighing freedom of expression against the duty of loyalty, several factors are relevant:

• Content of Expression: Expressions about matters of general and societal interest have particularly strong protection

• Form of Expression: Both factual statements and opinions are protected, but factual statements may require more substantiation

• The Employee's Position: Employees in senior positions may have somewhat narrower freedom of expression

• Internal or External Expression: The threshold is higher to restrict internal expressions than external ones

• Risk of Identification: If the employee can easily be identified with the employer, it may suggest restrictions

The Supreme Court has established that academic freedom grants very wide margins for what academic staff can say about professional and administrative issues, while employees in senior positions must endure more restrictions on freedom of expression.

Whistleblowing About Critical Conditions

Whistleblowing is a special form of expression regarding reporting critical conditions in the workplace. The Working Environment Act Chapter 2 A provides a right to whistleblow and protection against retaliation when the right to whistleblow is exercised.

The Right to Whistleblow

According to Section 2 A-1 of the Working Environment Act, employees have the right to report "critical conditions in the employer's business." The right also applies to hired employees and certain other groups of people performing work in the organization.

"Critical conditions" are understood to mean conditions that are against:

• Legal rules

• Written ethical guidelines in the organization

• Ethical norms that have broad agreement in society

The law provides examples of such conditions:

• Risk to life or health

• Risk to the climate or environment

• Corruption or other economic crimes

• Abuse of authority

• Unsafe working environment

• Breach of data security

Expressions that only concern dissatisfaction with one's own employment conditions, such as disputes over salary or work tasks, are not considered as whistleblowing about critical conditions unless they constitute a breach of legal rules or ethical norms.

Whistleblowing Procedure

Section 2 A-2 of the Working Environment Act regulates the procedure for whistleblowing and distinguishes between three levels:

1. Internal Whistleblowing: Employees can always whistleblow internally to:

   • Employer or representative of the employer

   • In accordance with the organization's procedures for whistleblowing

   • In accordance with the duty to report

   • Via a safety representative, union representative, or lawyer

2. Whistleblowing to Public Authorities: Employees can always whistleblow to supervisory authorities or other public authorities

3. Public Whistleblowing: For whistleblowing to the media or the public in general, the following conditions must be met:

   • The employee must be in good faith regarding the content of the whistleblowing

   • The whistleblowing must concern critical conditions of public interest

   • The employee must first have whistleblown internally or have reason to believe that internal whistleblowing would not be appropriate

The law does not impose any formal requirements on whistleblowing - it can be done both orally and in writing, and the expression does not need to be labeled as a "whistleblow."

Protection of the Whistleblower

Prohibition Against Retaliation

Section 2 A-4 of the Working Environment Act prohibits any form of retaliation against employees who whistleblow in accordance with Sections 2 A-1 and 2 A-2. Retaliation means "any adverse action, practice, or omission" as a result of or in response to whistleblowing.

Examples of retaliation may include:

• Threats, harassment, unfair discrimination, or social exclusion

• Warning, change in work tasks, reassignment, or demotion

• Suspension, dismissal, termination, or disciplinary action

Compensation and Redress

In case of a breach of the prohibition against retaliation, employees can claim redress and compensation. The employer is strictly liable, meaning there is no requirement of fault.

The redress is intended to compensate for non-economic loss, while compensation shall cover the economic loss caused by the retaliation. The redress is determined at an amount "reasonable" based on a comprehensive assessment of the parties' relationships and the nature and severity of the retaliation.

Burden of Proof in Whistleblowing Cases

There are specific rules regarding the burden of proof in whistleblowing cases:

1. The employer has the burden of proof to show that an expression does not constitute whistleblowing under Sections 2 A-1 and 2 A-2

2. In cases of alleged retaliation, a shared burden of proof applies: If the employee presents information that gives "reason to believe" that retaliation has occurred, the employer must demonstrate that retaliation did not occur

Procedures and Follow-up of Whistleblowing

Obligation to Have Whistleblowing Procedures

Organizations that regularly employ at least five employees are required to have written procedures for internal whistleblowing. For smaller organizations, the obligation applies if the circumstances in the organization indicate it.

The procedures must be prepared in cooperation with employees and their representatives and must include:

• Encouragement to report critical conditions

• Procedure for whistleblowing

• Procedure for receiving, handling, and following up on whistleblowing

The whistleblowing procedures shall not limit the right to whistleblow and must be easily accessible to all employees.

Employer's Duty to Act on Whistleblowing

The employer must ensure that reports about critical conditions are "sufficiently investigated within a reasonable time." The obligation applies whether or not the report was made following internal procedures.

The employer must also "particularly ensure" that the whistleblower has a fully safe working environment and implement measures to prevent retaliation when necessary.

Conclusion

Employees' freedom of expression is a fundamental right that also applies in employment. The duty of loyalty can, in certain cases, justify limitations on freedom of expression, but this requires a specific evaluation and balancing. The whistleblowing regulations in Chapter 2 A of the Working Environment Act provide a specific right for employees to report critical conditions in the organization and protection against retaliation when this right is exercised. The rules on whistleblowing procedures and follow-up of reports are intended to ensure that critical conditions are genuinely uncovered and remedied.