Under Section 2 A-1 of the Norwegian Working Environment Act, employees have the right to report censurable conditions within their employer’s undertaking. Temporary agency workers also have the right to report censurable conditions within the hiring undertaking. The provision applies to both internal and external whistleblowing in private and public sector organizations and covers employees at all levels and in all positions.
What constitutes “censurable conditions”?
The term “censurable conditions” is broad. According to the Act, it refers to circumstances that are contrary to legal rules, written ethical guidelines within the undertaking, or ethical norms that enjoy broad acceptance in society. Examples include:
a) danger to life or health
b) danger to the climate or environment
c) corruption or other financial crime
d) abuse of authority
e) an unsafe or unacceptable working environment
f) breaches of personal data security
This list is not exhaustive. The clearest examples are conduct that is criminal or otherwise violates statutory provisions, such as corruption or pollution. It may also include workplace-related issues, such as various forms of discrimination or harassment. In addition, breaches of an organization’s ethical guidelines may constitute censurable conditions.
A concern report is not necessarily a whistleblowing report
A specific assessment must be made to determine whether a report constitutes whistleblowing concerning censurable conditions. For example, an employee’s expression of concern does not automatically qualify as a whistleblowing report regarding censurable conditions.
Employer’s duty to follow up
When a report concerning censurable conditions has been made, the employer is required to ensure that the matter is adequately investigated within a reasonable period of time. This obligation follows from Section 2 A-3 of the Working Environment Act.
The provision concerning the employer’s duty to act is relatively new. It requires the undertaking to investigate the report within a reasonable time and to a sufficient extent. This involves both determining when investigations should be conducted and deciding the scope of the investigations required.
The employer must investigate within a reasonable time
The preparatory works to the legislation state that what constitutes a “reasonable time” must be assessed on a case-by-case basis, taking into account factors such as the seriousness of the report, the importance of obtaining a prompt clarification, and the practical time needed to investigate the matter. Resource considerations may also be relevant in this assessment.
What investigations are required?
The provision does not impose specific requirements regarding the type of investigations the employer must carry out. What constitutes a “sufficient” investigation must therefore be assessed in light of the circumstances of each case. Whether the employer should conduct an internal investigation or engage independent third parties is a matter for the employer to determine. The investigations undertaken should be proportionate to and justified by the content of the report. If it can readily be established, either immediately or following a preliminary review, that a report is unfounded, such a determination may be sufficient.
A particular responsibility to protect the whistleblower
Under the Act, employers have a specific duty to ensure that employees who report concerns continue to have a fully satisfactory working environment. Where necessary, the employer must implement measures designed to prevent retaliation. The preparatory works emphasize that whistleblowers may be in a particularly vulnerable position, including with respect to their working environment. For example, the employer may need to ensure that the whistleblower is not excluded or ostracized by colleagues.
As an extension of this obligation, the employer must also implement measures to prevent retaliation against the whistleblower whenever such measures are considered necessary.
Atle Melø
amelo@melo.no
+47 951 80 979
