Norwegian experts: Whistleblowers need more protection

The regulations surrounding whistleblowing are part of the working environment act, and this will not change. But there is a need to clarify both the law and the regulations while also improving the knowledge about them, the committee argues. Any whistleblowing legislation would need further consideration.  

“Over the past six months, the #Metoo campaign has shown how important it is for a workplace to have good routines and systems in place to handle alerts. It is crucial for the working environment and in order for employees to be able to do a good job,” said Anniken Hauglie when she received the whistleblowing committee’s report.

The whistleblowing committee was established by the government on 11 November 2016, and on 15 March 2018 it presented the Minister of Labour and Social Inclusion, Anniken Hauglie, with its report ‘NOU 2018: 6 Whistleblowing – values and protection’. In October 2017 the #metoo campaign kicked off in the USA and rapidly spread to Europe and the Nordic region.

The floodgates opened. During the Nordic labour ministers’ meeting in early December, Sweden’s Minister for Employment and Integration Ylva Johansson described the #metoo campaign as a shout from women which was spreading like wildfire from sector to sector in the Swedish labour market. #metoo has coloured all the Nordic countries in one way or other. In Norway it has shone a light on sexual harassment and a toxic culture in politics as well as in the culture sector and in working life.

“#metoo has highlighted how widespread this kind of harassment has been in Norwegian working life, and shown us it has not been properly handled in many workplaces, where many of those who speak out are not being taken seriously,” says Anniken Hauglie.

The experts’ mandate

The whistleblowing committee defines whistleblowing as “reporting cases of blameworthy conditions in the workplace to someone who might have the direct or indirect authority to do something about it.”   

This is close to the English definition of whistleblowing. It covers everything from smaller breaches of regulations to comprehensive cases of a criminal nature.

“Blameworthy means what is illegal, unethical, immoral, illegitimate – in other words, this covers both legal and ethical matters,” said Anne Cathrine Frøstrup, the leader of the whistleblowing committee, as she presented the report. She then explained the  background of the committee’s work, and its mandate. Paragraph 100 of the Norwegian Constitution on the freedom of speech, approved by parliament in September 2004, strengthened freedom of speech. The committee proposes that whistleblowing regulations refer to paragraph 100, in order to highlight how important freedom of speech is for the working environment and for people’s opportunity to speak out.

Legal provisions for whistleblowing were added to the working environment act and came into force in 2007, enshrining in law the right to whistleblow in cases of blameworthy conditions. It also introduced demands for proper whistleblowing procedures, banned retributions in the wake of whistleblowing and made it legally binding for employers’ to establish routines for whistleblowing.

The whistleblowing committee’s mandate has been to conduct a comprehensive review of existing regulations and consider the need for legislative changes and other measures aimed at strengthening the protection of whistleblowers.

“The committee’s mandate has been to review the protection offered to whistleblowers in working life. We have not considered how sexual harassment within political parties should be handled, but whistleblowing about sexual harassment in working life belongs to our mandate since these are blameworthy conditions,” says the committee’s leader Anne Cathrine Frøstrup.

When things go wrong

Things usually go well, says the committee leader, referring to a 2016 Fafo survey where more than half of whistleblowers said they had had a positive response from both management and colleagues.

Whether it pays to whistleblow depends on which sector you work in, according to Statistic Norway’s 2016 Living Conditions Survey. Data from the Norwegian Nurses Organisation showed 43 percent of respondents said things got better after whistleblowing, while the number from the Norwegian Police Federation was 24 percent.

“It usually goes well, but when it goes wrong it can go really wrong,” underlines Frøstrup and points to the 2016 Fafo survey, where 25 percent said they were met with negative reactions to their whistleblowing, and four people were fired.

The committee writes that whistleblowers who have spoken to the media or written about their cases, sometimes felt lonely and at a loss to knowing who to approach for help and support. The Norwegian Police Federation warns its members not to whistleblow, based on experiences from whistleblowing cases within the police.

How to you address the fear of retribution?

“Firstly, this is already illegal,” says the committee leader.

“Employers are duty bound to take action when they are told of blameworthy conditions. If this does not happen, they can become liable for compensation. We argue that the duty of care for the whistleblower must be taken seriously, and also propose a higher compensation figure. But law is not everything. The most important thing is that leaders take this seriously and have systems in place to deal with blameworthy conditions.”

The committee stresses that whistleblowing must be considered to be a consistent process. You need to secure good processes which take into account the interests of all those involved as well as those of the workplace. You should also facilitate for continuous improvement.

Calling for a whistleblower ombudsman

The committee recommends establishing a national whistleblowing guide in cooperation with the social partners, to strengthen knowledge in the workplace and in the courts of the regulations and of psychosocial conditions in working life. All relevant parties should understand the value of whistleblowing and of having the skills to handle it.

“The best thing is to deal with whistleblowing on the lowest possible level to solve conflicts, allowing the whistleblower and the person the case involves to keep working together,” says Anne Cathrine Frøstrup.

The whistleblowing committee has proposed the creation of an ombudsman for whistleblowers, in order to take care of people’s need for advice and direction in cases of whistleblowing, and to address the need for them to have somewhere to go to with their stories. This would be a public ombudsman’s office promoting knowledge and competencies surrounding whistleblowing in society, and which could provide advice and support in concrete whistleblowing cases.

A separate whistleblowing commission

A majority in the committee argue the courts have proven unsuitable as conflict solvers in whistleblowing cases. They are inaccessible and costly, and to bring a case before a court carries considerable risk. The majority therefore propose the setting up of a whistleblowing commission.

A whistleblowing commission could be a low threshold service making it easier for people to resolve whistleblowing cases. The commission would determine whether there has been illegal retribution or a breach of the employer’s duty to take action. The commission should also have the power to grant compensation in cases that are suitable for treatment by the commission.

Strengthening whistleblowers’ protection is costly

“An estimation carried out by Oslo Economics shows the setting up of an ombudsman’s office and a commission would be costly, but that in the longer term it could bring major socio-economic savings by uncovering blameworthy condition in Norwegian companies, and help pave the way for a better labour market,” says the committee leader Anne Cathrine Frøstrup.

The whistleblowing committee has a vision zero for the labour market: No blameworthy conditions should emerge. Frøstrup points to research which concludes that when the ground has been prepared for whistleblowing, you might get more cases for a while, but that these subside over time as blameworthy conditions are uncovered at an earlier stage and a good workplace culture develops.

“The aim is an environment where the employer wants to hire a whistleblower, rather than trying to avoid it.”

A commission to lower the threshold

“I find these perspectives interesting,” says Anniken Hauglie after listening to the presentation of the whistleblowing committee’s report, which now will be sent for consultation before the government decides how to respond to the committee’s proposals.

“A whistleblowing commission, as I understand the committee, would first and foremost lower the threshold for reporting blameworthy conditions, because many feel that taking matters to court represents too high a threshold. We see this also in the #metoo campaign. There is a desire for a commission in this area too. In Norway, the Ministry of Children and Equality is looking into this. Hence, there are several parties arguing for lowering the threshold.

“The #metoo campaign has highlighted the need for good routines in general when it comes to all kinds of unwanted behaviour and harassment at work,” Anniken Hauglie tells the Nordic Labour Journal.

She follows in the footsteps of Sweden’s Minister for Employment and Integration Ylva Johansson, who told the labour ministers’ meeting in Oslo in December that Sweden recently introduced new rules for organisational and social working environments.

“The #metoo campaign has shown that this is obviously not an issue which has been part of the systematic work to improve working environments,” said Ylva Johansson.

She has invited her counterparts from all the Nordic countries to talk about #metoo and its consequences at the coming ministers’ meeting in Stockholm on 13 April.