Protection of Whistleblowers

The aim of the act Protection of Whistleblowers No. 40/2020 is to encourage the reporting of breaches of legal obligations and other reprehensible misconduct and so seek to suppress such conduct.

Protection of Whistleblowers - aim of the act

To this end, the act authorises employees acting in good faith and believing that a breach of legal obligations or other reprehensible misconduct has taken place in their employer’s operations to report information or pass on materials to a person within the company, or to the police authorities or other appropriate public surveillance authorities, e.g. the Parliamentary Ombudsman, the Auditor-General or the Administration of Occupational Safety and Health.In the case of employees of central or local government, or of undertakings that are 51% or more in public ownership, this is not merely an authorisation but an obligation to report.

Protection of employees

The Act contains provisions that confer a certain protection on employees who report violations of legal obligations or other reprehensible misconduct in the operations of their employers. This protection is subject to the condition that the employee complies with the provision of the Act and follows the procedural rules set out in it.

Amongst other things, this protection means:

• That divulging the information is not regarded as a violation of the non-disclosure or confidentiality obligations by which the employee is bound; nor does it entail criminal or tortious liability for the employee and it cannot result in sanctions by the executive branch of government or encumbering measures according to labour law.

• That the employee may not be subjected to unjust treatment; such treatment includes, e.g., a reduction of entitlements, a change of working conditions to the employee’s disadvantage or termination of the employee’s engagement.

• That if a dispute is brought to court over the employee’s position, he or she shall be granted legal aid at the district court, Court of Appeals and Supreme Court level.

• That the party receiving the information or materials is obliged to treat in confidence all personal data regarding the identity of the whistleblower unless the latter gives his or her unequivocal consent to having his or her identity revealed.

The main rule is that external whistleblowing must be preceded by internal whistleblowing

The general rule is that whistleblowing outside the company or organisation, e.g. taking the matter to the media, is not permitted unless the channels for ‘internal whistleblowing’ have first been exhausted.‘Internal whistleblowing’ is when the employee, acting in good faith and believing that a breach of legal obligations or other reprehensible misconduct has taken place in the employer’s operations, reports information or passes on materials to a person within the entity or to the police or another surveillance authority, as appropriate, e.g. the Parliamentary Ombudsman, the Auditor-General or the Administration of Occupational Safety and Health.

Conditions governing external whistleblowing

External whistleblowing’ is when an employee, acting in good faith and believing that a breach of legal obligations or other reprehensible misconduct has taken place in the employer’s operations, reports information or passes on materials to a party outside the entity, e.g. to the media.

Whistleblowing of this type is subject to the following conditions:

External whistleblowing is also permitted in very exceptional cases when, for valid reasons, internal whistleblowing is not possible; this refers to instances where making the information known is regarded as involving such important public interests that the interests of the employer or of other persons must give way to having the information brought to the notice of an external party, for example

so as to protect:

Feedback to the whistleblower on measures taken

The person who receives the information within the company or organisation, i.e. the employer or the employer’s representative, shall inform the whistleblower whether the information given resulted in any action being taken, and if so, what action was taken. It is desirable that the employer state a time limit in its rules of procedure so that the whistleblower will not interpret delay as meaning that his or her call for action has been rejected or that the employer has failed to act.

Procedural rules on whistleblowing at the workplace

Under the Protection of Whistleblowers Act, companies or other workplaces with a staff complement of 50 or more on an annual basis are obliged to set rules, in consultation with the employees, on procedure for whistleblowing. The aim of this is to make it easier for the employees to rely on the Act and for the employer to respond to whistleblowing.The rules are to be set out in writing, and shall cover the receipt, handling and processing of reports of possible breaches of legal obligations or other reprehensible conduct in the employer’s operations. The rules shall be accessible to all employees and may not in any way curtail their rights according to the Act.

Here follow some points that employers must bear in mind when drawing up such rules:

• Rules of this type must be in place in companies or other workplaces with a staff complement of 50 or more.

• Employees must be consulted when the rules are drawn up.

• The rules must be in writing and must be accessible to all employees.

• The rules may not curtail employees’ rights as set out in the Protection of Whistleblowers Act.

• The rules shall state who, within the company or organisation, is to receive whistleblowers’ reports and how they are to be handled.

• It is sensible to state a time limit for informing the whistleblower of whether his or her report was considered as giving grounds for action so that the whistleblower will not interpret delay as meaning that his or her call for action has been rejected or that the employer has simply failed to act.

The Act provides for the Minister of Finance and Economic Affairs to issue rules in this area for public bodies and state-owned enterprises. Local authorities (municipalities) are to issue rules for the workplaces under their authority, and the Administration of Occupational Safety and Health is to publish a model for the rules on its website for use by other workplaces. The Act also provides that the Administration of Occupational Safety and Health is to monitor that employers adopt such rules.