NORWAY Law and Practice Contributed by: Thomas Talén, Øyvind Clausen Bade, Marte Dahl and Marianne Viset, Ro Sommernes Advokatfirma AS
a general principle, the Reporter’s identity shall never be disclosed more than absolutely necessary. Retaliation against any employee who has reported a notice of concern is prohibited. Retaliation means any adverse action, practice or omission that is a consequence of or a reaction to the employee hav - ing reported, including, but not limited to, threats, harassment, unjustified differential treatment, social exclusion, warning, change in work duties, reassign - ment, suspension, termination, summary dismissal or disciplinary measures. Where the working environment of a Reporter is not fully satisfactory as a result of, or in connection with the fact that a notice of concern has been made, this would be considered retaliation, which is unlawful under Norwegian law. Intentional or negligent viola - tion of the WEA’s provisions on health, environment, and safety may also result in criminal liability or fines. Where the employer fails to protect the Reporter in accordance with the law, the employee may claim compensation and damages from the employer without showing fault. That said, the employer is not required to implement disproportionately costly meas - ures. 4.2 Protection of the Respondent Under Norwegian law, the employer also has duties towards the Respondent. The employer must safe - guard the Respondent’s legal rights and ensure both the right to be heard and necessary confidentiality for the Respondent. This entails that the employer has established whistle-blowing procedures for handling the case, and that the Respondent has the right to contradict the allegations and factual statements giv - en by the Reporter. The Respondent also has the right to access the case information and documentation, balanced with the protection of the Reporter’s identity to the extent possible. Where the Respondent is also an employee, the employer must ensure that the Respondent also has a fully satisfactory working environment, both during and after an investigation. The employer has no duty to enter into confidentiality agreements with those involved in a whistle-blowing case, nor is this common
practice in Norway. As the WEA is primarily manda - tory law, any agreement that deviates from the WEA to the detriment of an employee will in most cases not be valid. The employer should seek to resolve the whistle- blowing of concern at the lowest level but may not protect the Respondent by failing to escalate the case to a higher level where necessary. Escalation may be necessary in serious matters, such as sexual harass - ment. Where the Respondent does not have a fully satis - factory working environment, the employer may face claims for damages and compensation, administra - tive sanctions from the Labour Inspection Authority ( Arbeidstilsynet ) as well as criminal liability or fines. 4.3 Measures Against the Respondent The employer may, by virtue of the employer’s mana - gerial prerogative, implement necessary measures in respect of a Respondent in a whistle-blowing case, even before the investigation has been concluded. Such measures are justified by the employer’s duty of care for its employees and the obligation to ensure a fully satisfactory working environment. Such meas - ures may include, for example, temporary reassign - ments, changes to work duties, or measures to secure evidence. In cases where there may be a risk to life and health, or where there is reason to suspect crimi - nal conduct that should be reported to and investigat - ed by the police, the employer will often have a duty to implement measures, even while the whistle-blowing case is still under review. Where the employer has a concrete basis to suspect that the Respondent has committed any acts that may constitute grounds for summary dismissal, and the needs of the business so require, the employer may suspend the Respondent while the matter is being investigated. This applies only where there is reason to believe that there has been a serious breach of duty or other material breach of the employment agree - ment and where less stringent measures are insuf - ficient to address the situation. Where the employer has reasonable grounds to believe that circumstances constituting grounds for
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