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Lack of information was not retaliation

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Legal news
calendar 12 March 2023
globus Norway

Retaliation against whistleblowers is prohibited, but it can be hard to determine what retaliation is. The Norwegian Anti-Discrimination Tribunal did not consider a “bad” job reference for a whistleblower as retaliation. Because the reference was given two years later, there was nothing to suggest that the employee’s whistleblowing motivated the “bad” reference.

A unit manager was employed by a municipality in a public kindergarten. During the employment, the employee reported many issues to the company as a whistleblower. This led to conflicts and eventually resulted in an agreement to end the employment relationship.

Two years later at a job interview, the employee was asked to give reference from her previous employment with the company. She did not notify the company that it would be contacted for a reference. However, when the company was contacted it supplied this.

When the company was asked why the employee’s employment had ended, it did not want to go into it. The employee did not get the job and claimed that the company’s reference had been retaliation against her as a whistleblower.

Reference was a dish best served short

The Anti-Discrimination Tribunal did not find the reference sufficient for retaliation. This was because there was no correlation between the report and the reference.

Retaliation is any unfavourable action, practice or exclusion by the company in response to the whistleblower’s report. Examples could include terminations with or without notice, relocations, harassment, or social exclusion. Whistleblowers are protected from retaliation motivated by the report. The burden of proof is therefore shared between the employee and the company. If the employee’s information gives reason to believe that retaliation occurred, the company must prove that this is not the case.

The company representative that gave the reference had not been notified about the reference request in advance and had never been the employee’s manager. In addition, the reference was requested more than two years after the employment ended. Based on this, it was more likely that the company’s reference was short due to short notice and lack of information than motivated by the employee’s whistleblowing.

IUNO’s opinion

This case illustrates the shared burden of proof, where the employee could not sufficiently prove that retaliation had occurred. There has been a limited number of court cases on retaliation against whistleblowers, making it hard to determine when retaliation has taken place. Since June 2021, whistleblowers have been able to issue retaliation complaints to the Anti-Discrimination Tribunal, which is free of charge. The expectation is that this opportunity will increase the amount of complaints.

IUNO recommends that companies remember that not only formal sanctions like warnings or terminations can be considered as retaliation. Despite this, whistleblowers are only protected against sanctions motivated by the whistleblower’s report or known intention of whistleblowing. A whistleblower can still be terminated if the company has just cause, but the company must be able to prove that the termination was not motivated by the report.

[The Norwegian Anti-Discrimination Tribunal’s decision of 31 January 2023 in case 2022/823]

A unit manager was employed by a municipality in a public kindergarten. During the employment, the employee reported many issues to the company as a whistleblower. This led to conflicts and eventually resulted in an agreement to end the employment relationship.

Two years later at a job interview, the employee was asked to give reference from her previous employment with the company. She did not notify the company that it would be contacted for a reference. However, when the company was contacted it supplied this.

When the company was asked why the employee’s employment had ended, it did not want to go into it. The employee did not get the job and claimed that the company’s reference had been retaliation against her as a whistleblower.

Reference was a dish best served short

The Anti-Discrimination Tribunal did not find the reference sufficient for retaliation. This was because there was no correlation between the report and the reference.

Retaliation is any unfavourable action, practice or exclusion by the company in response to the whistleblower’s report. Examples could include terminations with or without notice, relocations, harassment, or social exclusion. Whistleblowers are protected from retaliation motivated by the report. The burden of proof is therefore shared between the employee and the company. If the employee’s information gives reason to believe that retaliation occurred, the company must prove that this is not the case.

The company representative that gave the reference had not been notified about the reference request in advance and had never been the employee’s manager. In addition, the reference was requested more than two years after the employment ended. Based on this, it was more likely that the company’s reference was short due to short notice and lack of information than motivated by the employee’s whistleblowing.

IUNO’s opinion

This case illustrates the shared burden of proof, where the employee could not sufficiently prove that retaliation had occurred. There has been a limited number of court cases on retaliation against whistleblowers, making it hard to determine when retaliation has taken place. Since June 2021, whistleblowers have been able to issue retaliation complaints to the Anti-Discrimination Tribunal, which is free of charge. The expectation is that this opportunity will increase the amount of complaints.

IUNO recommends that companies remember that not only formal sanctions like warnings or terminations can be considered as retaliation. Despite this, whistleblowers are only protected against sanctions motivated by the whistleblower’s report or known intention of whistleblowing. A whistleblower can still be terminated if the company has just cause, but the company must be able to prove that the termination was not motivated by the report.

[The Norwegian Anti-Discrimination Tribunal’s decision of 31 January 2023 in case 2022/823]

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