In recent years, the protection of whistleblowers – both internationally and in Sweden – has been widely discussed. There is significant public interest in disclosing and repairing the wrongdoings of companies, organisations and authorities. As workers often have a greater number of opportunities to uncover serious wrongdoings, they are considered especially worthy of protection. Whether whistleblowers have adequate legal protection in Sweden has been the subject of ongoing debate. The government recently found that whistleblower protection must be improved and new legislation entered into force on January 1 2017.
The new legislation has given Sweden its first act specifically on whistleblowing – the Act on Special Protection Against Victimisation of Workers Who are Sounding the Alarm About Serious Wrongdoings (also known as 'the Whistleblowing Act'). The Whistleblowing Act does not regulate any right for employees to blow the whistle on wrongdoing. However, the legislation protects employees and temporary workers who report serious wrongdoings in their employer's business from retaliation. It also deems any agreement restricting workers' whistleblowing protection to be invalid.
The act should be viewed as part of a larger framework that provides whistleblower protection. The protection provided by the act applies to employees in both the private and public sector.
According to the act, serious wrongdoings constitute criminal activity where the statutory penalty includes prison for comparable misdeeds. There are also examples of activities that are not penalised, but which are considered to be comparable misdeeds, including:
- violations of fundamental rights and freedoms;
- non-compliance with applicable regulations;
- irregularities that may result in safety risks;
- health risks; and
- risks of damage to the environment.
Wrongdoings must be objectively regarded as serious.
The serious wrongdoings to which 'sounding the alarm' refers need not have occurred by the time that the employee has blown the whistle for the law to be applicable. The act clarifies that the assessment of whether the whistleblowing concerns serious wrongdoings should be made based on the employee's allegation.
The act provides three whistleblowing reporting mechanisms. The general rule of the act is that the employee first blow the whistle internally to the employer or representative, or by using the usual internal reporting routes. The employee must point to concrete suspicions of serious wrongdoing when whistleblowing internally for the law to be applicable. The same applies when the employee whistleblows to his or her employee organisation (ie, union).
An employee who whistleblows externally will enjoy the protection of the act, provided that the employee:
- first whistleblows internally and the employer failed to take the appropriate measures in response; or
- had reasonable cause whistleblowing externally.
When whistleblowing externally, the employee must have reason for the allegation of serious wrongdoings in order to enjoy the act's protection. An employee who commits a crime when blowing the whistle does not fall under the act's protection.
The act stipulates an evidentiary alleviation rule. This implies that an employee who is believed to have been subject to retaliation which falls under the act's scope may address a claim for damages to the employer.
The act aims to strengthen the protection of employees who blow the whistle and increase the possibilities for them to do so. However, since the act establishes no concrete ground for its applicability, employees will most likely find it difficult to assess whether they fall under the act's protection. This may bring substantial costs to an employee who chooses to initiate action for damages before a court, where the action in question that triggered the whistleblowing is not in fact regarded as a serious wrongdoing.
Further, it is possible that whistleblowing will come into conflict with an employee's loyalty to his or her employer.
The act provides protection from employer retaliation against employees and temporary workers, but does not stipulate a right for those people to blow the whistle. There is a risk that employees and temporary workers will misinterpret the act's purpose.
For further information on this topic please contact Jörgen Larsson and Malin Hurtig at Wistrand Advokatbyrå by telephone (+46 31 771 21 00) or email (firstname.lastname@example.org or email@example.com). The Wistrand website can be accessed at www.wistrand.se.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.