Proposal that alleged retaliation cases after notification (whistleblowing) may be processed in the Anti-Discrimination Tribunal

The Government has recently submitted a proposal to the Parliament for the establishment of a low threshold service in the Anti-Discrimination Tribunal for the processing of alleged unlawful retaliation in notification cases.

If an employee has notified about censurable conditions at the employer’s undertaking and considers him- or herself exposed to illegal retaliation, the employee must today take legal action to clarify the  dispute in the court. The financial risk involved implies that there are few notification cases that are processed in the courts.

To strengthen the protection of whistleblowers, the Government proposes to establish a low threshold offer where a tribunal is given the authority to decide disputes about alleged retaliation after whistleblowing. The Government proposes that this authority be added to the Anti-Discrimination Tribunal.

Complaints to the Anti-Discrimination Tribunal are free of charge. A lawyer is not required. Complainants do not risk having to pay the other party's legal costs. However, there is a long case processing time in the Anti-Discrimination Tribunal, currently almost eight months, so it is uncertain how much faster the cases will be processed in the Anti-Discrimination Tribunal than in the courts.

The proposal means that the Anti-Discrimination Tribunal will have the authority to assess whether there is an illegal retaliation, as well as provide redress for noneconomic loss, in some cases, compensation for damages to an employee who has been subjected to illegal retaliation after notification. The Government proposes that the Anti-Discrimination Tribunal shall not have the authority to deal with cases of retaliation in the form of dismissal, termination or termination and offer of new employment on new terms. These disputes must still be brought before the courts.

The Government does not propose changes to the case processing rules that apply to the Anti-Discrimination Tribunal. If the proposal is adopted, it means, among other things, that the cases will normally be carried out by written case processing instead of oral hearing.

There will not be a deadline for reporting claims to the Anti-Discrimination Tribunal, but the Anti-Discrimination Tribunal can reject cases where the disputed matters are older than three years. Both employer and employee can take legal action and file lawsuits within three months after a decision by the Anti-Discrimination Tribunal.

The proposal will now be considered by the Parliament.