Workplace battlegrounds: Are Norwegian employees being criminalised?

The two OsloMet researchers work at the AFI Work Research Institute. They investigated this phenomenon and have published ‘Faktaundersøkelser – a “hybrid conflict weapon” in Norwegian workplaces’. The book is based on 33 interviews covering 22 different cases where workplace investigations have been used.

“The problem lies in the method itself, not that it is being applied wrongly. It is no coincidence that the method limits freedom of speech in the workplace, deteriorates the psychosocial work environment and undermines the social partners’ cooperation,” says Bitten Nordrik.

The two researchers call workplace investigations a “hybrid weapon”.

“Hybrid means the mixing of two or more elements to create something new with completely new properties. In war, the term is used when both military and non-military weapons are used together to consciously challenge and confuse the enemy,” says Tereza Østbø Kuldova. 

Bitten Nordrik and Tereza Østbø Kuldova have written the book about workplace investigations.

This might sound dramatic, but conflicts between employees in a workplace or between an employee and a manager can often become very serious and difficult to solve. Sometimes they end up in the courts, but this happens far too rarely for there to be proper precedence about workplace investigations.  

Workplace investigations were first developed in Norway in 2005 - 2007 when the Norwegian Labour Inspection Authority launched an anti-bullying campaign called “Working without bullying”. In the wake of this grew a trend of zero-tolerance for workplace bullying and harassment. 

The term is rooted in a strategy to fight crime which the New York Police Department called “broken windows”. By focusing on minor crimes like broken windows, shoplifting and graffiti, crime could be nipped in the bud. 

“Workplace conflicts are increasingly being talked about using war metaphors. ‘Workplace deviance’, ‘contra-productive work behaviour’ or nonconformist behaviour in the workplace is increasingly understood as a breach of the law – and treated as such. It is then investigated using methods inspired by the police," write the authors in the book’s preface. 

In Sweden, workplace investigations are known as mobbingsutredningar, or bullying investigations, but the Norwegian term is broader and can include disloyalty to the employer for instance. To complicate things further, legal protection now exists for whistle-blowers who can report on wrong or illegal action in the workplace anonymously.

“There is a big difference between anonymity and confidentiality,” points out lawyer Birthe M Eriksen, who has represented several whistleblowers and employees who felt harassed.

“In the case of confidentiality, the employer knows who has spoken up but promises to keep it a secret. But if this is done anonymously, nobody knows who has been sounding the alarm.”

The interviews performed by Bitten Nordrik and Tereza Østbø Kuldova show that there has been considerable confusion about what a workplace investigation entails. Several respondents felt pressured to take part when they themselves thought the issues should have been solved through ordinary workplace channels.  

“They were told the method was similar to known work environment processes, but then experienced that it was anything but.”

Although the person who has raised concern, or who has had a grievance made against them, has the right to being supported by a union or a safety representative, this representative has no right to interfere or comment during the interrogation. 

“It makes people feel like they are in a hostage situation where they are not quite sure what to do,” says Bitten Nordrik.

The lack of information makes employees vulnerable when interrogated and treated like suspects. 

“A majority of the people we interviewed developed serious psychological issues like angst, depression and post-traumatic stress. The experiences also triggered suicidal thoughts in some,” say Bitten Nordrik and Tereza Østbø Kuldova.

Workplace investigations are carried out in two phases. First comes a preliminary investigation to establish whether there really are claims of harassment or bullying or other issues linked to the psychosocial work environment. The second phase looks at whether work environment legislation has been broken.

“Workplace investigations are the employer’s way of 'drawing a line under' a complaint or an alert from a whistleblower. Those who offer the method often present it as an alternative to a possible court case,” say the two researchers.

Workplace investigations have gradually become so common that they now represent a considerable source of income for psychologist and lawyers. 

“But which ethical guidelines should be followed by those who carry out workplace investigations? The literature underlines that the investigators should step out of their professional roles – be it lawyer, doctor or psychologist – and enter into the constructive role as fact investigator, a role which does not come under the same professional or ethical guidelines,” points out Bitten Nordrik.

Birthe M Eriksen, who contributed to one chapter in the book, is also critical.

“The border between workplace investigations and private preliminary investigations is fuzzy. Sometimes I wonder whether a workplace investigation is chosen in order to avoid having to relate to the bar association’s guidelines,” she says.

Both the psychological association and the bar associations were asked to comment on these mixed roles. 

“Only the bar association answered our request, by underlining that a lawyer will always be a lawyer and will be judged from that,” says Bitten Nordrik.

Only recently did the bar association decide that a lawyer must always follow the professional regulations.

What is it then that the authors feel make workplace investigations so destructive?

• The causes of conflict are not included in the investigation. Rather than looking at the problems as part of the work environment, they are linked to individual people.
• Workplace investigations are based on the employer’s mandate. There is nobody to complain to if you disagree with the result. 
• The interviews are not voluntary. Employees are told they must participate because according to the work environment act they must participate and have a duty to approach the employer and the safety representative as soon as they learn about harassment in the workplace. 
• Those who have been interrogated are put under pressure to sign the minutes taken by the investigators during the meeting. People have felt it nearly impossible to make corrections to the minutes. The conversation is not recorded.

In conclusion, the authors say that workplace investigations are not compatible with the Norwegian labour market model.

“Workplace conflicts can be better dealt with by using existing tools and by focusing on more systematic and preventative approaches. This is also often the more economical choice since cooperation between the social partners is based on solving conflicts at the lowest possible level and avoiding escalation,” says Bitten Nordrik and Tereza Østbø Kuldova.