Last updated: 4 oct, 2023
What is whistleblowing?
Not all types of problems or incidents automatically qualify as whistleblowing just because they are reported through a whistleblower service. There are specific formal requirements for it to be classified as whistleblowing and thus fall under whistleblower legislation.
- The reported wrongdoing should be related to the whistleblower's work
- The wrongdoing may have already occurred or may pose a future risk
- The wrongdoing should be serious enough to warrant a general and legitimate interest in its investigation
- Factors such as frequency and systematic nature increase the likelihood that the wrongdoing is of general interest
For whistleblower legislation to be applicable, the reported wrongdoing should be work-related, meaning it has occurred (or is at risk of occurring) in the activities that the whistleblower is, has been, or will be engaged in through their work. It can also be another activity that the whistleblower has come into contact with through their work.
In addition to the requirement of a work-related context, the suspected wrongdoing must be considered serious enough to be of general interest. For there to be a general interest, the wrongdoing must concern a group of individuals that can be referred to as the public. The law is normally not applicable when it comes to reporting matters that only concern the reporting person's own work or employment conditions.
However, in special cases, there may be a general interest in matters that solely concern the reporting person, such as if the person works under slave-like conditions or if an employer systematically violates existing regulations, with the individual case serving as an example. It may also be the case that wrongdoing related to an agreement that strictly concerns the parties involved still affects the public, such as in cases of corruption.
In addition to the wrongdoing being related to the public, the public must have a legitimate interest in the wrongdoing coming to light. General curiosity is not sufficient. The more frequent and systematic the wrongdoing, the greater the societal interest in its investigation. If the report does not fall within the above criteria, such as when it only concerns the whistleblower's own work environment, the matter should be reported through regular channels, such as to the immediate supervisor, the supervisor's supervisor, HR, the chief occupational safety representative, or labor organizations.
Why should one have a whistleblower service?
According to whistleblower legislation, all companies with at least 50 employees must have an internal whistleblower service. Also, a whistleblower service is often a requirement in procurement processes. But there are other reasons. A well-functioning whistleblower channel signals that the organization takes wrongdoing seriously and promotes a problem-solving climate. By receiving reports of suspected wrongdoing, the management has the opportunity to address them.
What is a whistleblower service?
A whistleblower service can be designed in several ways, but essentially, it consists of two elements:
- The opportunity for employees to report suspected wrongdoing - to blow the whistle.
- Procedures and processes for handling the reports.
There are, of course, many different ways to address this, but some important considerations include:
According to the law, reports should be possible in writing, orally, and through physical meetings. A written report can be made digitally, but there should also be a procedure for handling whistleblowing via postal mail. An oral report is ideally made by phone, but it is important to ensure that this type of report also meets all requirements. Whistleblowing through physical meetings is very rare in our experience since whistleblowers often prefer to remain anonymous, but it can happen, and there should be a readiness for it.
A whistleblower report is subject to confidentiality. This means that only individuals with explicit authorization to administer whistleblowing have the right to access the content. Furthermore, information must be handled and stored in a way that minimizes the risk of data breaches, such as ensuring that information is stored correctly and not sent through open channels such as email. Confidentiality applies not only to information regarding the whistleblower but also to individuals mentioned in a report, even indirectly. According to a recent court ruling in the administrative court, this even means that organizations subject to the principle of public access to official records should not disclose information in a whistleblowing case.
Employers should be able to guarantee independence in the handling of whistleblower reports. This means that those who handle/investigate a report must not have any conflicts of interest. Examples of this could include an investigator who is expected to investigate their manager or close colleague. For such situations, there should be alternative investigators who can handle the case, as well as procedures for decision-making on a case by individuals who are not conflicted. An investigator can also be an external person hired to conduct the investigation.
Whistleblower legislation does not require an employer to offer the possibility to report anonymously. But our experience shows that many prefer anonymity when making a report due to fear of retaliation. As an employer, you want to make it as simple and safe as possible for the whistleblower, in order to ensure that you become aware of any wrongdoing. For this reason, we recommend that the option of anonymity is available in your whistleblower service.
There are also aspects related to GDPR to consider. Whistleblower legislation grants the employer the right to handle data regarding third parties. However, sensitive information should be deleted as soon as a case is closed. In some cases, there may be requirements for archiving, but information should be cleared from the whistleblower system as soon as possible.
Who can blow the whistle?
In practice, anyone can make a report, and it is often difficult to determine who has made the report as it can be done anonymously. The employer is responsible for ensuring that the whistleblower service is available to individuals who are engaged with the employer and that they can report wrongdoing that occurs in the organization.
The categories of persons covered include:
- Employees or job seekers of any kind, including volunteers and interns
- People available to the employer, such as hired personnel
- Self-employed individuals seeking or performing work
- Administrative, managerial, and supervisory bodies available to the employer
- Persons who previously belonged to any of the above categories and had access to information during their time with the employer, for example, former employees
What to think about as an employer?
As an employer, there are certain important aspects to ensure compliance with the law:
- There should be an internal whistleblower service that is clearly communicated
- A confirmation of a received report should be delivered within seven days, and feedback to the whistleblower should be provided within three months
- Reports should be investigated by individuals who are independent and impartial (internal or external)
- A whistleblower cannot be held accountable for breaching confidentiality or for violations of regulations when gathering information
- The whistleblower should not be obstructed in their report or subjected to retaliation
- The whistleblower should be offered confidentiality
The employer should provide a whistleblower service (a reporting and follow-up procedure). It should be possible to report in writing, verbally, and through a personal meeting. An incoming report should be confirmed within seven days, and within three months, the whistleblower should receive feedback on how the report has been assessed.
The whistleblower solution should be clearly documented and communicated to employees and others who should be able to use the solution, and the employer must ensure that investigations of incoming reports are conducted in a manner that guarantees independence in the investigation.
Assuming the whistleblower has reason to believe it is necessary to make the report, the whistleblower can set aside confidentiality obligations and violate the provisions regarding information gathering. However, there are limitations, one being that you are not permitted to commit crimes to obtain information.
The law also stipulates that it is not allowed to attempt to prevent reporting or take any form of retaliation against the whistleblower or those who have assisted. It is the responsibility of the employer to ensure compliance with this. The protection does not apply if the whistleblower has committed a crime in making their report.
A whistleblower is entitled to confidentiality. This means it is prohibited to disclose the whistleblower's identity, and measures should also be taken to maintain confidentiality. It is important to handle the principle of public access to official records correctly if your organization is normally subject to it.