New initiative will make it easier for whistleblowers to act against retaliation
The Norwegian government suspects that whistleblowers fail to act against retaliation in light of the limited amount of court case. For this reason, a new proposal to strengthen whistleblowers’ rights has been introduced. Pursuant to the proposal, whistleblowers should also have access to submit complaints to the Norwegian Anti-Discrimination Tribunal, which already provides for a free system where legal representation is not required to bring a case.
The existing rules on whistleblowing were already introduced in Norway back in 2007, as the first country in the Nordics. Concurrently, a prohibition to retaliate against whistleblowers was introduced.
However, pursuant to the existing rules, whistleblowers who consider that they have been subject to unlawful retaliation following a report, have to bring their claim to court. Now, to make the rules more efficient, the Norwegian government is proposing a new initiative whereafter claims can be brought to the Norwegian Anti-Discrimination Tribunal easily, for free and without the need for legal representation.
The Norwegian Anti-Discrimination Tribunal was chosen because it already is responsible for processing cases somewhat similar, such as discrimination or sexual harassment cases. It was therefore considered more efficient to use this existing authority, instead of establishing a whole new tribunal to deal specifically with cases regarding whistleblowers that have been subject to retaliation.
Termination cases must be taken to the ordinary courts
Because of elements such as the economic consequences as well as aspects of time, case law is limited within the area of whistleblowing. Court proceedings trigger substantial financial risks in terms of costs associated with legal representation and costs relating to the proceedings, if the case is lost. Also, processing times before the courts are generally very time consuming. As a result, there is a risk that whistleblowers do not initiate court proceedings, which leads to an inefficient level of protection.
There is no requirement before the Norwegian Anti-Discrimination Tribunal on legal representation, or other costs associated for the whistleblower to submit a complaint. However, the new initiative may not be more time efficient. As the ordinary courts, the Tribunal also has long processing times which means that the whistleblower may not obtain clarification much faster than before the ordinary courts.
Another aspect is that in any case, the new initiate does not allow the Tribunal to handle cases regarding termination. Consequently, if the whistleblower has been terminated, constructively dismissed or summarily dismissed, the process would in any case have to be brought before the ordinary courts.
IUNO’s opinion
The new initiative attempts to offer whistleblowers easier access to submit complaints if they have been subject to retaliation. Together with an increased focus on whistleblower rights, the new initiative may lead to an increased number of cases in practice.
IUNO recommends that companies are aware that the new initiative does not change any of the existing rules on whistleblowing, for example on what a whistleblower can report and the assessment of retaliation. Companies should also be aware that both the company and the whistleblower, within three months, can initiate court proceedings against the Norwegian Anti-Discrimination Tribunal’s decision.
[Proposal to change the Working Environment Act and the Anti-Discrimination Ombud Act of 9 April 2021]
The existing rules on whistleblowing were already introduced in Norway back in 2007, as the first country in the Nordics. Concurrently, a prohibition to retaliate against whistleblowers was introduced.
However, pursuant to the existing rules, whistleblowers who consider that they have been subject to unlawful retaliation following a report, have to bring their claim to court. Now, to make the rules more efficient, the Norwegian government is proposing a new initiative whereafter claims can be brought to the Norwegian Anti-Discrimination Tribunal easily, for free and without the need for legal representation.
The Norwegian Anti-Discrimination Tribunal was chosen because it already is responsible for processing cases somewhat similar, such as discrimination or sexual harassment cases. It was therefore considered more efficient to use this existing authority, instead of establishing a whole new tribunal to deal specifically with cases regarding whistleblowers that have been subject to retaliation.
Termination cases must be taken to the ordinary courts
Because of elements such as the economic consequences as well as aspects of time, case law is limited within the area of whistleblowing. Court proceedings trigger substantial financial risks in terms of costs associated with legal representation and costs relating to the proceedings, if the case is lost. Also, processing times before the courts are generally very time consuming. As a result, there is a risk that whistleblowers do not initiate court proceedings, which leads to an inefficient level of protection.
There is no requirement before the Norwegian Anti-Discrimination Tribunal on legal representation, or other costs associated for the whistleblower to submit a complaint. However, the new initiative may not be more time efficient. As the ordinary courts, the Tribunal also has long processing times which means that the whistleblower may not obtain clarification much faster than before the ordinary courts.
Another aspect is that in any case, the new initiate does not allow the Tribunal to handle cases regarding termination. Consequently, if the whistleblower has been terminated, constructively dismissed or summarily dismissed, the process would in any case have to be brought before the ordinary courts.
IUNO’s opinion
The new initiative attempts to offer whistleblowers easier access to submit complaints if they have been subject to retaliation. Together with an increased focus on whistleblower rights, the new initiative may lead to an increased number of cases in practice.
IUNO recommends that companies are aware that the new initiative does not change any of the existing rules on whistleblowing, for example on what a whistleblower can report and the assessment of retaliation. Companies should also be aware that both the company and the whistleblower, within three months, can initiate court proceedings against the Norwegian Anti-Discrimination Tribunal’s decision.
[Proposal to change the Working Environment Act and the Anti-Discrimination Ombud Act of 9 April 2021]
