A harsh e-mail from a shop steward was a report concerning issues of concern

The Supreme Court's latest judgement on what constitutes a report concerning issues of concern illustrates how important it is for employers to carefully consider whether critical statements from shop stewards or employees actually constitute reporting issues of concern (whistleblowing) within the meaning of the Act.

In its judgment of 21 December 2023, the Supreme Court has clarified a practical and fundamental question about what it takes to constitute “a report concerning issues of concern" within the meaning of the Working Environment Act. In practice, the judgement may mean that employers will more often than previously assumed have a duty to follow up on matters that have been reported, and that a prohibition against retaliation will more often apply.

Background to the case

The case originated in an email from a shop steward the day after a meeting on a personnel matter where a colleague received a verbal warning. The email was verbal in nature and contained strong criticism of the HR manager's handling of the personnel matter. The shop steward subsequently received a written warning and was later reassigned. The shop steward filed a lawsuit against the employer claiming that the reassignment was invalid and demanded compensation for damages on the basis of unlawful retaliation.

The proceedings before the Supreme Court were limited to the question of whether the shop steward's e-mail must be considered “a report concerning issues of concern" within the meaning of the Working Environment Act.

No requirements for the form of the report concerning issues of concern

The judgement clarifies that the law does not require any specific form of a report concerning issues of concern. This means that a report can be made both in writing and orally, and in any context, as long as it is made to the employer or a representative of the employer, in accordance with the organisation's routines for reporting issues of concern or in accordance with the duty to report. This means that the employer's procedures cannot restrict the employees' right to report issues of concern, and that the provisions of the Act on whistleblowing cannot be derogated from to the disadvantage of the employee.

No public interest requirement for internal whistleblowing

The Supreme Court judgement also clarifies that there is no public interest requirement for internal whistleblowing. This is in contrast to external whistleblowing to the media or the general public. The Supreme Court also found that the limitation against whistleblowing concerning "own employment" was not relevant because the shop steward had not spoken out about his or her own employment. This interpretation means that matters that are worthy of criticism that only concern one employee are covered by the whistleblowing rules when the report concerning issues of concern is submitted by a shop steward.

Whistleblower does not have to prove unacceptable conditions

The Supreme Court emphasises that there is no requirement for the whistleblower to prove that the matters raised are true. The employer must assess whether the whistleblower has reported a matter that would be worthy of criticism if what is expressed or suspected is true.

Factors in the assessment of whether a report concerning issues of concern has been given

The Supreme Court emphasises that the employer must make a detailed interpretation of the statement from the employee or shop steward. It is not only possible to look at the choice of words used. The context in which the statement was made and the parties' knowledge of each other may also be important.

The decisive factor is whether the employer has reasonable grounds to perceive the statement as indicating that there are conditions in the organisation that are worthy of criticism. If the statement is unclear, the Supreme Court assumes that the purpose of the whistleblowing rules may indicate that the employer should contact the person who has made the statement to clarify how what has been said should be understood.

The Supreme Court also clarifies that there is no presumption that enquiries from shop stewards concern matters on which the parties have ongoing communication. Also, for statements from shop stewards, it will be decisive how the statement in question must be perceived.

Consequences of the judgement

With this judgement, the Supreme Court has settled one of several questions in the specific case that will now be sent back to the Court of Appeal for a new hearing. It therefore remains to be seen what the outcome will be on the question of whether there has been unlawful retaliation and whether there is a basis for compensatory damages.

What the practical consequences of the Supreme Court's clarifications of principle also remain to be seen, but some reflections arise immediately:

• It can be asked whether the judgement will lead to additional work in connection with the employer's handling of (possible) whistleblowing cases.
• It cannot be ruled out that the judgement in practice lowers the threshold for what has so far been considered to be “a report concerning issues of concert” in the sense of the law.

However, this need not involve much additional work compared to how employers otherwise follow up cases where employees or employee representatives criticise the employer or conditions in the organisation. The employer's duty of activity under the Act allows for the specific follow-up of each individual case to be customised to what the report concerning issues of concern provides a factual basis for. In some cases, the duty to act can therefore be fulfilled by simple clarifications involving a small number of people.

The actual difference between what the employer would have done anyway and how the case can be followed up as a whistleblowing case need not be particularly large.

The Supreme Court's judgement may nevertheless provide a basis for reviewing the company's whistleblowing procedures and making an updated assessment of how the employer follows up on this type of case, both in and outside the cases where the statutory duty to act on whistleblowing applies.

We at Littler have extensive experience in counselling in whistleblowing cases and handling demanding personnel cases within and outside the whistleblowing rules and are ready to provide assistance in this area also in 2024!