In November 2016, the Norwegian government appointed a committee to review the notification rules in the Working Environment Act and assess the need for legislative amendments or other measures to strengthen whistleblower protection. The committee submitted its recommendation on 15 March 2018. Great expectations were attached to this opportunity to strengthen the whistleblowing institution in Norway. It was particularly interesting that the notification committee concluded that notification is a value and not a problem for society when the notification is taken seriously and followed up, and wrote: "The goal must therefore be to establish good systems and cultures for notification in the companies."
Own alert agent
The committee proposed that a separate whistleblowing ombudsman be established to provide advice, support and assistance to whistleblowers in specific cases. The ombud should have good competence and assist both whistleblowers, whistleblowers, employers and others affected.
At the same time, it was believed that the notification ombud should convey general knowledge and thus an understanding of the value of notification to society. In serious whistleblowing cases of great social significance, the committee believed that the whistleblowing ombud should have special competence and the opportunity to take the initiative for independent investigations.
It should be mentioned that the opposition in the Storting had supported both the whistleblowing ombudsman and his own committee.
The majority of the committee proposed that a separate tribunal be established for whistleblowing cases, which should assess and decide whether, after notification, retaliation had taken place against the whistleblower. The tribunal should have the competence to award compensation and redress to the whistleblower. The committee also believed that the employer should to a greater extent be imposed with an activity obligation to investigate the notice. The tribunal was also to have the authority to investigate whether there was a breach of the employer's duty of activity for following up the notice.
The committee also wanted a clearer clarification of the employer's responsibility for care when it came to measures that could prevent retaliation. As of today, it is the individual whistleblower who considers himself exposed to retaliation, who must bring his case before the court for assessment of whether there is retaliation after whistleblowing.
This is very expensive and something most people can not afford. The notification board was intended to be a low-threshold offer so that cases of retaliation could be resolved without court proceedings, and the notification committee proposed that access to redress and compensation should be expanded and the levels of compensation raised.
The committee proposed a separate whistleblowing law which was to include the establishment of the whistleblowing ombud and the whistleblowing board. Through this law, the mandate and authority of these bodies were to be regulated. Notification in working conditions was still to be regulated in the Working Environment Act and not in the Notification Act.
Measures require resources
The committee emphasized that the measures proposed to strengthen whistleblower protection in Norwegian working life would require resources. It is worth quoting the whistleblowing committee on this point: “It is important to emphasize that if society wants to achieve the goal in the committee's mandate to strengthen the protection of whistleblowers, then it has its price. The question will ultimately be to what extent society is willing to invest in and invest in strengthened efforts to facilitate more warnings of matters worthy of criticism and provide good whistleblower protection, which overall will provide socio-economically profitable uncovering of matters worthy of criticism in Norwegian companies and ensure a better working life. "
The sample was largely ignored
The notification committee's recommendation was sent for broad consultation, and in the spring of 2019, the Government put forward in Prop. L 74 (2018–2019) the proposal for amendments to the Working Environment Act. The Government's response can illustrate:
• The government did not follow up on the proposals from the notification committee at system level, neither about the notification representative nor its own notification committee.
• The government did not want to establish a separate committee for this purpose, but would rather assign this task to the existing committee, and agreed that this issue should be investigated further. A current issue is to add this to the Equality and Discrimination Tribunal.
- For the most part, the government chose only to continue the current regulation of notification of objectionable or illegal matters. Some minor clarifications of the legal text were, however, later adopted, such as elaboration of what is considered to be matters worthy of criticism, and the employer's duty of activity regarding the investigation of the notice.
- However, the Notification Committee's proposal to introduce strict liability for financial loss as it has been for redress compensation was granted.
It should be mentioned that the opposition in the Storting had supported both the whistleblowing ombudsman and his own committee. Therefore, it must be stated that the notification committee's very constructive and well-thought-out proposal was to a small extent followed up by the government.
It is a long way to go before it is safe to report matters worthy of criticism of a socially harmful nature in today's Norway. The new provisions do not ensure that all parties to the process are taken care of, and this applies to notifications, notifications and employers. The new legal provisions lack boldness and reveal that the government does not recognize that notification is a new element in our social and legal order.