Strengthened protection for the whistleblower to place demands on 300,000 employers

When whistleblower, Karin Törnqvist, revealed corruption at Göteborg Energi she received no new assignments from the company. Now a new law to enter into force on 1 July 2015 aims to provide enhanced protection for whistleblowers’ working conditions in their workplace. Employers will at the same time – to the extent the business requires it – be required to establish internal whistleblowing procedures.

There is a strong public interest in employees sounding the alarm about serious wrongdoing in their workplace so that anomalies are revealed, addressed and eliminated. Whistleblowing can give the public information about serious wrongdoing such as corruption, pollution, market abuse and neglect. Currently, there is no special protective legislation for a whistleblower, instead a variety of legal rules apply from different areas of law and case law. An inquiry was set up to, among other things, identify the relevant situations for whistleblowing, propose measures that strengthened the protection of the whistleblower and to provide any necessary legislative proposals. The Commission, headed by Supreme Court Justice Per Virdesten, submitted its report (SOU 2014: 31) earlier this year.

According to the report, workers who become aware of abuse, often refrain from sounding the alarm due to a fear of: reprisals, uncertainty about what protection is available, a lack of clarity in how they should proceed and whom they should notify.

The Commission’s proposals

In its report, the Commission makes the following proposals:

• A new labour law strengthening protection for internal and external workers who sound the alarm about serious anomalies in an employer’s business. Serious irregularities are referred to as conditions which are reasonably believed to be criminal (penalty of imprisonment).
• Rules for the protection of the identity of the whistleblower. In order for confidentiality to also apply in the public sector amendments are needed to existing legislation (offentlighets- och sekretesslagen 2009: 400).
• A requirement for all employers, to the extent required by their activity, to either ensure that there are procedures for internal communication of serious wrongdoing or to take other measures to facilitate such alarm. The Swedish Work Environment Authority (Arbetsmiljöverket) is proposed as a regulator.

A law on strengthening protection for whistleblowers

The proposed law constitutes a protective labour law. The law applies in tandem with the other regulations that protect workers and should never be able to restrict the protection that a whistleblower within the workplace would otherwise have. For a worker to enjoy enhanced protection at the external alarm, the following conditions must be met:

• An alarm procedure for serious abuses in the employer’s business.
• The employee must as a rule have first sounded the alarm internally.
• The employee must, at the time of the alarm, believe to be true those facts which gave rise to the whistleblowing.

Internal alarms are required only in instances concerning serious anomalies in the employer’s business.

A statutory requirement for whistleblowing procedures

Employers should – to the extent their business requires it – take measures to create conditions for workers to sound the alarm internally. Every employer must assess the risks inherent to their business and implement appropriate measures. Such risk assessment should – according to the report – especially take into account risks to health, safety, the environment and corruption. Exactly what procedures must then be created or corrected depends on the specific needs of the business.

The obligation must be fulfilled within the framework of the systematic work environment regulations (systematiska arbetsmiljöarbetet) and the principles that apply there must also, if applicable, govern the assessment of the fulfilment of the obligation. The regulator who should ensure that employers comply with this requirement is the Work Environment Authority (Arbetsmiljöverket).

There are no formal requirements regarding how the obligation is to be fulfilled. A report should contain draft written procedures which are later formalized into instructions, regulations, codes of conduct or similar. Procedures should be known and available in the business and staff should be trained in how serious irregularities are reported. In addition, there should be a person with the responsibility for receiving and processing reports of serious abuses.

External consultants

The overwhelming majority of opinions expressed a positive response to improving the protection of whistleblowers. Criticisms of the proposals mainly focus on the Commission’s failiure to achieve its aim of strengthening protection for the whistleblower due to the rules being neither clear nor easily applicable. For whistleblower Karin Törnqvist the proposal doesn’t offer any enhanced protection as external consultants are not covered by the new law.

By assisting companies, primarily in the construction industry, Moll Wendén has received many questions from employees about whether their identity is indeed protected, and what to do in definite terms when they suspect an irregularity. This uncertainty indicates that legislation governing the protection of whistleblowers is required. In addition, we note that the requirement to provide whistleblowing procedures will affect approximately 300,000 employers in both the private and public sectors, and that guidance is needed to explain how these companies can improve their procedures.

Elisabeth André
Henric Stråth