Freedom of speech, whistleblowing right and duty of loyalty
All employment agreements assume that there is a relationship of trust between the employer and employee and that the employee has a duty of loyalty towards their employer. At the same time, workers have a constitutional freedom of expression, as well as a statutory right, and sometimes a duty, to report reprehensible circumstances within their organisation.
Employees' duty of loyalty
The employee's duty of loyalty means, amongst other things, that the employee should not take on other work which competes with that of their employer to an excessive degree and that the employee must support the employer's interests insofar as is necessary for the employment.
The duty of loyalty is not regulated by law, but the law does contain provisions concerning penalties in the event of certain breaches of the duty of loyalty. For example, an employee can be punished through the imposition of a fine or imprisonment if he or she exploits commercial secrets in a competing commercial enterprise.
Employees' freedom of speech
Freedom of speech is a human right protected by the Norwegian Constitution. The general principle is that anyone can speak freely on their own behalf, and that the business decides who should speak on its behalf. The duty of loyalty of employees only provides protection against statements which harm their employer's fair and objective interests in a disloyal manner. The duty of loyalty does not entail any general right to regulate or sanction statements by employees. Employers can therefore not penalise statements because they are considered to be undesirable or unfortunate. Statements not covered by the confidentiality obligation which largely express the employee's own views will normally be permitted.
Employee's whistleblowing right
Employees have a right to report reprehensible circumstances within the business. An employee can always report circumstances internally, to supervisory authorities and/or to other public authorities. In the case of other external notifications, such as to the media, three conditions apply regarding the employee's conduct. The employee must act in good faith regarding the content, the report must concern reprehensible circumstances which are of public interest, and the employee must first have reported the circumstances internally or have reason to believe that internal reporting would not be appropriate.
If a colleague is discriminated against or harassed or in the event of circumstances which could endanger life or health, all employees are obliged to notify their employer or safety representative. The duty to report reprehensible circumstances may also follow from other laws, such as health legislation and the Money Laundering Act.
The employer is obliged to draw up procedures for internal whistleblowing. The procedures must explain how any report will be handled.
As an employer, you have a duty to follow up and investigate any reports of reprehensible circumstances. Retribution against employees who report such circumstances is prohibited. Employees who become the victim of retribution after reporting reprehensible circumstances can claim compensation for financial loss and redress for non-financial loss.