NORWAY Trends and Developments Contributed by: Thomas Talén, Caroline Lomsdalen Bendixen, Julie Krigsvoll Auran and Marlene Dalvik Eriksen, Ro Sommernes Advokatfirma AS
Formal requirements There are no formal requirements for notices of con - cern, or their submission. The employer’s duty is to investigate any notification adequately and within a reasonable timeframe, with the scope of investiga - tion proportionate to the content and nature of the notification. Not all notifications warrant extensive investigation. Overall, legal developments show that the threshold for sending a notice of concern is low, and that no formal requirements are imposed. The employer is strictly prohibited from engaging in retali - atory conduct, with sanctions being applicable for any breach of this prohibition. Freedom of Expression and Duty of Loyalty in Employment Relationships Freedom of expression is afforded robust constitu - tional protection in Norway, extending comprehen - sively to employees through both the Norwegian Constitution and international human rights conven - tions. While the duty of loyalty may impose certain limitations on an employee’s freedom of expression, the threshold for such restrictions is high. The duty of loyalty requires that employees refrain from disloyally harming their employer’s legitimate business interests. Research indicates, however, that a significant major - ity of employees hold the misconception that the duty of loyalty extends considerably further than its actual legal scope, which in practice inhibits their willing - ness to exercise freedom of expression in workplace contexts. Substantive contributions to ongoing workplace dis - course will rarely be considered disloyal. However, statements primarily characterised by personal emo - tions, speculation, or appearing unprofessional and derisive may constitute disloyalty. Whistle-blowing enjoys particularly strong legal pro - tection to ensure that important information comes to light. Statements concerning censurable condi - tions are protected by freedom of expression, even when the employer perceives them as unwelcome or uncomfortable. A 2023 Norwegian Supreme Court ruling gave the concept of whistle-blowing a broad application, presenting challenges in distinguishing between general criticism and whistle-blowing.
and violations of health and safety regulations. The purpose of the whistle-blowing framework is to pro - mote transparency and foster a positive climate for open communication within organisations. Developments in recent years Recent decisions from the Norwegian Supreme Court have established that the threshold for a statement to constitute a notice of concern is low: the determina - tive factor is whether the employer has reasonable grounds to perceive the statement as reporting condi - tions that would be censurable if they were true. No formal requirements apply – even statements forming part of ordinary internal communication may consti - tute a notice of concern. The assessment is holis - tic and contextual, with weight given to the choice of words, the circumstances, and the parties’ mutual knowledge. Distinction between information and allegations Statements that only concern an employee’s own employment relationship will not constitute notices of concern, unless they also concern censurable condi - tions, such as an unsafe working environment. The key question is whether the statement concerns a breach of norms within the organisation, not merely (professional) disagreement or personal conflict. A statement made by a union representative may also constitute a notice of concern – the individual roles and context are relevant elements in the assessment. Internal versus external notice of concern Internally, a notice of concern may be given to the employer in accordance with the organisation’s whis - tle-blowing procedures, via a safety representative, union representative or lawyer. Sending an external notice of concern to a supervisory authority or other public authority is always permitted. Disclosure to the media or the general public requires that: • the employee act in good faith, exercising due care regarding the content; • that the notification concern matters of public inter - est; and • as a general rule, that an internal notice of concern has been attempted first or would be inappropriate in the circumstances.
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