SWEDEN Trends and Developments Contributed by: Jenny Welander Wadström, Björn Johansson Heigis, Andreas Hallbeck and Säde Märgel, Roschier
reports, which interact with General Data Protection Regulation (GDPR) requirements in relation to storage limitations and data processing minimisation. In practice, these obligations have prompted many companies to: • adopt formal whistle-blowing policies and proce - dures; • designate specific individuals or units responsible for receiving and following up on reports; • implement case management systems or external whistle-blowing platforms; and • integrate whistle-blowing processes with existing compliance and policy frameworks. Impartiality, independence and governance The Whistleblower Act requires that individuals or units responsible for handling whistle-blower reports be independent and impartial. In practice, these inde - pendency and impartiality requirements affect who may conduct interviews, review documents and ulti - mately assess the factual and legal conclusions. While the Whistleblower Act does not prescribe a specific investigative method, the combination of impartiality expectations, potential retaliation claims and repu - tational concerns has contributed to an increasingly formalised investigation culture. Companies are now more likely to document scoping decisions, maintain detailed interview notes and separate fact finding from decision-making within the organisation. Interaction with labour law HR matters that are reported in an organisation typi - cally do not fall within the framework of the Whistle - blower Act, as they are typically not considered to be of a public interest. However, internal investigations triggered by whistle-blower reports still intersect with labour law rules, regarding for example employers’ responsibility to ensure a good work environment and the right of employers to dismiss employees under certain circumstances. An employer must consider how an internal investiga - tion affects the work environment and the well-being of its employees, and take measures to account for how the associated processes can place significant
pressure on an accused person, as well as on wit - nesses and whistle-blowers. Furthermore, employment legislation limits the actions an employer can take against an employee whose conduct is being investigated. In general, an employer cannot transfer an employee to another department or place them on garden leave based merely on unveri - fied allegations of misconduct made in a whistle- blowing report. The Swedish Employment Protection Act ( Sw. Lag (1982:80) om anställningsskydd ) prohibits employers from dismissing an employee without objective rea - sons for doing so, except for those in top managerial positions. This protects employees from being dis - missed based on mere allegations in a whistle-blower report of misconduct. However, where it is established that an employee has engaged in misconduct that is sufficiently serious to reach the threshold for objective reasons for dismissal – for which the employer has the burden of proof – the employer may dismiss the employee. By contrast, managing directors and other employees in managerial positions can generally be dismissed by employers, provided that the terms of the employment agreement are met. Suspensions, reductions in compensation or other forms of disciplinary action are, in general, unlawful under Swedish employment law. Hence, the main actions an employer can take in response to the reporting of an employee’s unacceptable behaviour are to issue a warning that the behaviour may con - stitute grounds for dismissal or dismiss the employee (with or without notice, depending on the severity of the misconduct). Redeployment is, however, a suitable alternative to dismissal in some situations. In addition, offering garden leave with full benefits on a voluntary basis is permitted. However, if imposed without the employee’s consent or without strong justification, it could – in the worst-case scenario – be considered an
unlawful termination of employment. Supervision and recent case law
Supervision of the obligations under the Whistle - blower Act rests with the Swedish Work Environment Authority. The supervision can encompass whether a company has established compliant internal channels
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