NORWAY Trends and Developments Contributed by: Thomas Talén, Caroline Lomsdalen Bendixen, Julie Krigsvoll Auran and Marlene Dalvik Eriksen, Ro Sommernes Advokatfirma AS
Several studies indicate that many Norwegian employ - ees experience significant limitations to their ability to express views publicly about their workplace, with the situation deteriorating in recent years. The misapplication of the whistle-blowing framework may foster the misconception that workplace criticism is only lawful through formal whistle-blowing chan - nels, which has a chilling effect on freedom of expres - sion. This misunderstanding can cultivate a culture of caution that restricts employees’ freedom of expres - sion and result in fewer employees being willing to Norwegian law prohibits retaliation against employees who have given a valid notice of concern in accordance with the Working Environment Act ( arbeidsmiljøloven , the WEA), which expressly prohibits retaliatory actions. However, employees may nevertheless experience de facto retaliation despite giving a lawful notice of concern. It is therefore of significant importance that both employers and employees understand the legal provisions governing retaliation. Who does it apply to? The retaliation protections in the WEA apply to employees and hired workers. Additionally, the follow - ing groups are also considered employees for the pur - poses of whistle-blowing and retaliation protections: • students in education or research institutions, civil - ian conscripts and conscripts in civil defence; • inmates in correctional institutions; • patients in health institutions, rehabilitation institu - tions and similar; • persons placed in enterprises for training purposes or in connection with employment measures with - out having employee status; and • persons participating in labour market measures without having employee status. report censurable conditions. Protection Against Retaliation General The prohibition against retaliation applies primarily to those who have given a notice of concern but also extends to employees who have expressed an inten - tion to give a notice of concern. This may include situ -
ations where an employee has conducted investiga - tions, copied documents, or expressly stated that they will report unless the conditions are remedied. What does it entail? The retaliation protections for employees include a prohibition against both formal and more informal negative sanctions against an employee who has giv - en a notice of concern. A formal sanction will typically be termination of the employment agreement due to the whistle-blowing. More informal reactions, which may be somewhat more difficult to prove, are exclu - sion, non-promotion or differential treatment. Norwegian law has defined retaliation as any unfa - vourable action, practice or omission that is a con - sequence of, or a reaction to, the employee having reported, for example: • threats, harassment, unjustified differential treat - ment, social exclusion or other improper conduct; • warnings, changes in work tasks, relocation or demotion; and • suspension, dismissal, summary dismissal or disci - plinary sanctions. Additionally, employers have a duty to act preven - tively, with a general duty to ensure a fully satisfac - tory working environment which applies particularly to employees who have given a notice of concern. Where necessary, employers must implement appro - priate pre-emptive measures to prevent retaliation. When an employee presents information indicating that retaliation has taken place, the burden of proof shifts to the employer to demonstrate that no such retaliation took place. The evidentiary requirement for employees is not onerous. Generally, it will be suf - ficient for the employee to document that whistle- blowing has taken place and that dismissal or other adverse action occurred in temporal proximity to the whistle-blowing. What falls outside? It is important to understand that the prohibition against retaliation applies only to actions connected to the fact that the person has given a notice of con - cern. The prohibition against retaliation only protects
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