Promises are made to be kept
After six reports from former colleagues an employee claimed that the company should share their identities. The Norwegian Court of Appeal found that the company could refuse to reveal their identities as it would only harm the company. This was partly because the trust between the company and the whistleblowers would be broken.
A former employee in an equestrian organization had raised a defamation claim against the company. The claim was based on reports from six whistleblowers, where the former employee was described as having extreme and inappropriate anger issues.
Four of the whistleblowers were employed in the company and had only agreed to report on the former employee if this could be done confidentially. The company promised to keep their identities confidential.
During the court proceedings, the former employee requested that the company shared the whistleblowers’ identities. The company refused to provide the identities, because the whistleblowers were afraid of retaliation from the former employee. Although no longer employed, the former employee held prominent positions at the racing tracks and was often at the whistleblowers’ workplace. The whistleblowers would also have to work with the former employee in the future.
Trust is action, not words
The court concluded that the company was not obligated to share the confidential whistleblowers’ identities.
It is the company’s duty to ensure a safe and healthy working environment, physically and psychosocially. If the company broke its promise to the whistleblowers, it could seriously damage the trust between the whistleblowers and the company. The company must also ensure that whistleblowers are not retaliated against. Failure to implement measures when there is a known risk of retaliation could also lead to criminal charges against the company.
The court also noted that choosing not to identify the whistleblowers would only damage the company in the court proceedings, not the former employee. The former employee already knew the identity of the other non-confidential whistleblowers and was free to call in relevant character witnesses.
IUNO’s opinion
Although the whistleblowers had reported confidentially, the company knew their identities. In Norway, the main rule is that the subject of a report is entitled to know the whistleblower’s identity. Any exception to this rule must be justified by the individual circumstances. This case illustrates one exception.
IUNO recommends that companies are careful when making promises of confidentiality to whistleblowers. Not only because the companies might not be able to keep these promises, but also to ensure compliance when reviewing the report.
[The Norwegian Borgarting Court of Appeal’s court order of 19 May 2023 in case LB-2023-67604]
A former employee in an equestrian organization had raised a defamation claim against the company. The claim was based on reports from six whistleblowers, where the former employee was described as having extreme and inappropriate anger issues.
Four of the whistleblowers were employed in the company and had only agreed to report on the former employee if this could be done confidentially. The company promised to keep their identities confidential.
During the court proceedings, the former employee requested that the company shared the whistleblowers’ identities. The company refused to provide the identities, because the whistleblowers were afraid of retaliation from the former employee. Although no longer employed, the former employee held prominent positions at the racing tracks and was often at the whistleblowers’ workplace. The whistleblowers would also have to work with the former employee in the future.
Trust is action, not words
The court concluded that the company was not obligated to share the confidential whistleblowers’ identities.
It is the company’s duty to ensure a safe and healthy working environment, physically and psychosocially. If the company broke its promise to the whistleblowers, it could seriously damage the trust between the whistleblowers and the company. The company must also ensure that whistleblowers are not retaliated against. Failure to implement measures when there is a known risk of retaliation could also lead to criminal charges against the company.
The court also noted that choosing not to identify the whistleblowers would only damage the company in the court proceedings, not the former employee. The former employee already knew the identity of the other non-confidential whistleblowers and was free to call in relevant character witnesses.
IUNO’s opinion
Although the whistleblowers had reported confidentially, the company knew their identities. In Norway, the main rule is that the subject of a report is entitled to know the whistleblower’s identity. Any exception to this rule must be justified by the individual circumstances. This case illustrates one exception.
IUNO recommends that companies are careful when making promises of confidentiality to whistleblowers. Not only because the companies might not be able to keep these promises, but also to ensure compliance when reviewing the report.
[The Norwegian Borgarting Court of Appeal’s court order of 19 May 2023 in case LB-2023-67604]
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